HomeMy WebLinkAboutR-2008-142 Richardson Airways ConsentA RESOLUTION
RESOLUTION NO. R-2008-142
authorizing the City Manager to sign a Consent Decree, together with
Yakima County ("County"), for the clean-up of Richardson Airways, Inc.,
at the Yakima Air Terminal, with the Washington State Department of
Ecology ("Department of Ecology") pursuant to the Model Toxics Control
Act ("Toxics Control Act") RCW 70.105D.
WHEREAS, the City and the County are the co-owners of the Yakima Air Terminal ("Air
Terminal"); and
WHEREAS, from 1953 to 1992, Mr. Ralph Richardson leased approximately 157,000
square feet of Air Terminal property and operated an aerial pesticide applicator service on the
site for 38 years; and
WHEREAS, operations at the site included filling an airplane spray tank with pesticide
solution and on completion of the aerial spraying, washing the tank at the "washdown site"; and
WHEREAS, soil samples from the site revealed the presence of hazardous substances
including Aldrin, Chlordane, DDT and Dieldrin; and
WHEREAS, clean-up of the site will benefit the operations of the Air Terminal and the
public; and
WHEREAS, the Department of Ecology has set aside grant funding for the City and the
County that will provide ninety per cent (90%) of the costs of the clean-up; and
WHEREAS, the City and the County have negotiated a Consent Decree with the
Department of Ecology as provided in the Toxics Control Act; and
WHEREAS, the approval of the Consent Decree is a pre -condition to the clean-up, now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager for the City (or designee) is hereby authorized to sign the Consent
Decree with the Department of Ecology for the' clean-up of the Richardson Airways site at the
Air Terminal.
ADOPTED BY THE CITY COUNCIL this 7th day of ctober, 200:
/I/
ATTEST:
City Clerk
David Edler, Mayor
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RECE 1;
JAN 12 /M.'
CITY LEGAL DEPT.
CONFORM AND RETURN.
F [E
DEC 2 6 2008
tum r-7
STATE OF WASHINGTON
YAKIMA COUNTY SUPERIOR COURT
STATE OF WASHINGTON,
DEPARTMENT OF ECOLOGY, NO. 0, 2 (1 it 8 6 2 1
Plaintiff, CONSENT DECREE
V.
CITY OF YAKIMA, COUNTY OF
YAKIMA,
Defendants.
TA13LE OF CONTENTS
I INTRODUCTION
II JURISDICTION .... . 4
ill PARTIES BOUND ..... . 5
IV. DEFINITIONS . 5
V. FINDINGS OF FACTS 7
VI WORK TO BE PERFORMED 9
VII DESIGNATED PROJECT COORDINATORS 11
VIII PERFORMANCE 12
IX ACCESS 12
X SAMPLING, DATA SUBMITTAL, AND AVAILABILITY „. 13
XI PROGRESS REPORTS . . ..... . . . 14
XII. RETENTION OF RECORDS 15
XIII. TRANSFER OF INTEREST IN PROPERTY I 5
XIV RESOLUTION OF DISPUTES . . 15
XV AMENDMENT OF DECREE. . 17
XVI. EXTENSION OF SCHEDULE.. . 18
CONSENT DECREE
ATTORNEY GENERAL OF WASHINGTON
Ecology Division
I'D Box 40117
Olympia, WA 98504-0117
(360) 536-6770
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X. SAMPLING-, DATA SUBMITTAL, AN]) AVAILABILITY ,. . 14
XI PROGRESS REPORTS .„ 15
X11. RETENTION OF RECORDS . 16
XIII. TRANSFER OF INTEREST IN PROPERTY , . , 16
XIV. RESOLli HON or DISPUTES 16
XV AMENDMENT OF DECREE . 18
XVI. EXTENSION OF SCHEDULE.... . 19
XVII. ENDANGERMENT 20
XVIII. COVENANT NOT TO SUE . 21
XIX. coNTRIBunoN PRoTrcnoN
XX. I ,AND USE RESTRIC1 IONS ,
XXI. FINANCIAL ASSURANCES . 23
X.X11 INDEMNII.ICATION • .....24
XXIII COMPLIANCE WI HI APPLICA111, I I AWS •-/,4
XXI V R LrAkDI Al, AcHON cos I'S 26
XXV IIVIPLEMINTATION OF REMEDIA I AC ION
XXVI PERIODIC REVIEW 27
XXVII, 131.1111.1.0 PARTICIPATION 27
XXV111.DURA I ION OF DECREE.... . , .. 28
XXIX CLAIMS AGAINS I' IE S 29
XXX EFFE,CTIVE DAT1.:;: 29
XXXI WI'l'IIDRAWAL OF CONSENT .. . . 29
EXI-11BII' A
E.X1-11131T 13
(Cleanup Action Plan
Site Diagrams
CONSFN I DI(1111'. 2
ATTORNLY ( INlR,\ 01 WASII1N(i'FON
kcology Division
l'0 Box '10117
"Voiria, WA ()8501-0117
1:Ax (3(0) Sg6-6760
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EXHIBIT C
l: XH11:31'l' 1)
1:;.X111131'1' b;
Scope of Work and Implementation Schedule
Public Participation Plan
Ground Water Sampling Data Submittal Requirements
(:'(.)NSI:N•1' 1)F.CR1=,1:i 3
i\'1•fORNl Y (;cNIiRAI OI•\VASIIIN(iION
licolou\ Division
PO 110\10117
ORmpia. WA 9N50,1•0117
I •\N (360) SS6-6700
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L INTRODUCTION
A, The mutual objective or the State of Washington, Department of Ecology
(kcology) and the Defendants (('ity of Yakima and the County or Yakima) under this l)ecree is
to provide for remedial action at a facility where there has been a release or threatened release
of hazardous substances. This Decree requires Defendants to develop a Cleanup Action Plan
(CAP) (attached as Exhibit A) and then implement that Plan to remediate the contaminate(.)
soils in the "washdown area" or Richardson Airways. A.s more Billy described in the CAP, this
Decree requires the Defendants to excavate and remove the contaminated soils at the Yakima
Air 'terminal (Richardson Airways. Inc ) Documentation of the remediation shall be
subn;iticd to Ecology in a completion report
l cology has determined that these actions are necessary to protect hinrran health and
the enwnronmcrit.
1? the (.'.omplaint m this action is heing fila{ simultaneously with ihis Decree. Ari
Answer bas not been Bled rnxi there has riot been a trial on an' issue or fact or la\\. in this ease
Ilov evei the Parties \.\ish to resolve the issues raised by 1,eulogv s Complaint In addition
the Parties agree that setile.ment of these matters without litigation is reasonable and in the
puhh(.. iilterest. inid that entry of this I)ct.ree is the most appropriate i)Ieans OI i:solving these
ii'i<ittei'S
1'colo}y entered into a prior Consent Decree with the (.'ii\ or Yakima Yakini<t
County ani Ralph Richardson. which was tiled in Yahiii a Coi.ariy Superio) Court under cause
number 97-2-0l 092-S ("the Prior Consent Decree') The City or Yakima, ('mint)' of Yakima
and Ecology will jointly move to dismiss the Prior Consent Decree only against Defendants
('ity of Yakima and County or Yakima. The dismissal of City of Yakima and the County of
Yakima under the P)'ior Consent Decree will not apply to Ralph Richardson Any monitoring
or operation and maintenance work not completed by the ('ity of Yakima and County of
Yakima under the Prior Consent Decree will be addressed in the Cleanup Action Plan to this
(X)NSI:N't' t)I;('REI: 4 NITORNrv(iIiNiRnLOr\\'.A.OiNGIi)N
isoloL' Division
PO Ru.o 401 I'7
OI1'mpin, w(\ 9g50.1-01 17
l'i\N (:1(0) cS6.6760
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Decree This Consent Decree will supersede the prior Agreed (.)rder made between Ecology,
Richardson Airways, ]nc. and the Yakima Air 'Terminal (1)1., 91'l'C-C4455I.
1). By signing this Decree, the Parties agree to its entry and agree to he bound by
its terms.
F. By entering into this Decree the Parties do not intend to discharge non -settling,
parties from any liability they may have with respect to matters alleged in the Complaint. The
Parties retain the right to seek reimbursement, in whole or in part, from any liable persons for
sums expended under this Decree
This Decree shall not be construed as proof of liability or responsibility for any
releases of hazardous substances or cost For remedial actinn nor an admission of any facts,
provided, however, that Defendants shall not challenge the authority of the Attorney General
and 1•:cology to enforce this Decree
(i I'he ('ouri is hilly advised of the reasons for entry of this Decree and
rause having been tihown
Nos, therefore, it is I ll,l:l 13Y ()Rl)FRN:l) AD.fi ID(iFt) AND I)1;('I:lit,1) as lollo\\s
Court has jurisdiction over the subfeet matter and over the Parties pursuant
to the Model 1 oxic.s Control Ad (MTC/\), Chapter /0 101) kC\)d
l;
Authority is conferred upon the Washington Sidle Attorney General by R('\\I
70 1051) 040(4)(a) to agree to a settlement with any potentially liable person (PI.,P) iP after
public notice and any required hearing, Ecology finds the proposed settlement would lead to a
more expeditious cleanup of hai.ardous substances 1:(.'W 70.10SD 040(4)(b) requires that
such a settlement be entered as a Consent Decree issued by a court of competent jurisdiction
C. Ecology has determined that a release or threatened release of hazardous
substances has occurred at the Site that is the subject of this ]Decree.
C'ONSI;NI' I)t;CRt l'
'Vi'roi:NrY (ie:NPRAI of \\'ASI IINOTON
isology Division
PO l lox 40117
01\ 11106. \VA 98501-0117
rAX (3601586-67M
1.). Neology has given notice to 1)eiendants of l;cology's determination that
Defendants arc Pl..Ps for the Site as required by R.C'W 70,105D.020(2I) and WAC'
17>- 140-500
k. The actions to 1)e taken pursuant to this Decree are necessary to protect public
health and the environment
I'' This Decree has been subject to public notice and comment.
G. Ecology finds that this Decree will lead to a more expeditious cleanup of
hazardous substances at the Site in compliance with the cleanup standards established under
RCW 70 1051) 0 i0(2)(e) and Chapter 173-140 WAG.
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Defendants have agreed to undertake the actions specilied in this Decree and
consents to the en1r), of this Decree under MICA.
Ch1, .PARTft:S ItC�UND
I.his Decree shall apply to and he bending, upon the Parties to this I)ccrec, iheii'
successors and assigns The undersigned representative of each pari) herch) certifies that he
or she is fully authoozed to enisr into this Decree and to execute and legally hind such party to
comply with this Decree Deleneiar)ts agree to undertake all actions required h) the icons nod
conditions of ihis Decree No chart ,e in ownership or corporate status shall ,)Iter Defendants
iesponslhility under this 1)cc.ree
Delendaots shall provide Li copy of this Dccrec: to all igenis
contractors, clad subcontractors retained to pei'lorn'i \\oil: i'egi.ured by this Decree, and shall
ensure that all work undertaken by such agents contractors, i31)(1 �l.lhcorliractors complies with
this 1)ecrcc
IV. DEFINITIONS
Unless otherwise specified herein all definitions in RCW 70.10>I) 020 and
WAG 171-340-200 shall control the meanings or the terms in this Decree
CONSENT I)I:CI21 I' 6
A'rrORNPY ciFNIiRAI., Or \V,\SI IINI i'I'ON
I;CUlo1Y Division
P1) Iic. ,11)117
(lh'mpin. \VA 9s5O4-1)1 17
I' '\X 1 60) ig6-676i
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A. Site The Site is referred to as the "washdown area" at Richardson Airways It
is located near the southeast corner of the Yakima Air 'Terminal property adjacent to the
north/south taxiway of Runway No 34 Specifically, the Site location is defined as:
Commencing at the Northwest corner of Section 2, '1'. 12N , R 181;., W.M
"Thence 5 89" 53'20 F along, line of the Northwest quarter of said section a
distance of 2013.08 feet; thence 00"2.5'05" E a distance of 1531 05 feet to a point
in the North-South fence line West of the North-South Runway, said point being
the True Point. of Beginning. 'Thence N 00'25'05" W along said fence. line, and
the extension thereof a distance of 186 27 feet, thence N 89"02'42" L a distance
of 62 17 feet.
Thence N 03°01'46" h: a distance of 7'7.20 feet
I'hence S 88"54'2I" I' a distance of 27 33 feet.
l'hence S 0;"42'46' l:; a distance. of 26'; 6.1 feet.
Thence S 89°3d''YY' \V a distance of 109, 7); feet
io the point of the hc'h,inning
The Site I`, more 9articulaily illustrated in I;xlubrt Ii to this Decree v, Inch are the 5tie
1)r,a;1rarns, fhe Site constitutes a facility under R('W 70 1051 ) 020(.:;)
I> Parties RefL.rs to the State of Washineton. Department of I',c:uloII) and the
City of' Yakima and the County of Yakima.
1)eferxiants: Refers to the City of Yakima and the founts of \,;11, mid
I) Consent Decree or Decree Refers to this Consent Decree and each of the
exhibits to this Decree. All exhibits are integral and enforceable parts of this Consent 1)ecrce
The terms "Consent Decree' or `'Decree'. shall include all exhibits and figures to this Consent
Decree
(.'ONSt N'I DI,CIZI;Ii 7
rl'ORNI'Y (i5NIRAI OF WASHINGTON
ION
I;'0i00y lli�isi"n
Pt) ZION 40117
OIvnlpri, \VA 95504 01 1 )
I'AS (3601'186406o
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V. FINDINGS ON FACTS
I cology makes the following findings of fact without any express or implied
admissions of such facts by Defendants
A The City of Yakima and the County of Yakima are co-owners of the Yakima
A1r'I Tern] ma] property where the facility is located. The Facility name rs Richardson Airways
1.3 fhe Site is listed on the Department of Ecology's Hazardous Sites I,ist as
"Richardson Airwayswith the Facility Site ID No. 4.42. The Site Hazard Assessment ranking
for this Site is 2.
C. From approximately 1953 to 1992, Mr Ralph Richardson leased approximately
157,000 square feet o1 Yakima Airport property Mr Richardson operated Richardson
Airways, Inc , an aerial pesticide applicator service, on the Site for approximately 38 years
between 1954 and 1992 Operations at the facility include filling an applicator airplane spray
tank with pesticide solution, then 111)011 completion of aerial sprayings washing cleaning <. dior
rinsini.i, the airplane tank lit the 'washdown site
l his site,. was a small area of the lease
( 17,000 sd ft.). Waste water from the cleaning procedure was allowed to seep into the
surrounding soils and drain into nearby catch basins
I) Surface soil samples were taken and analyzed Irum the vAas1.1(.10 n area in 1989
hs fechnico (1 I'.nvrru Services Co Organochlorine pesuciiks \\.c.re ligand in the soil ii'i the
"washdown area". The following pesticides found in soil samples exceeded NI'l CA. Method B
soil cleanup levels protective of groundwater (WAC 173 340 74t)(3)(a)(n)(A))
Aldrin
▪ Chlordane
® 1)1)'1'
• Dieldrin
In January of 1992, Ecology, Richardson Airways, Inc. and Yakima Air
'Terminal entered into an Agreed Order (DE 91 'I'C-C455). 'fhe Yakima Air Terminal is co..
CONS[:N'r I)(:;CRt t. 8
Al'rc)II I.1' (i a,NF.RA I.01 \vnsi i IN( JON
Ixolog\ Division
P(')13os 10117
(livmi i i. \V,\ 91150,1-0117
FAX (160) 586-6760
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owned by the City of Yakima and the County of Yakima. Phis Agreed Order required a RI/FS
be conducted ol the soil in or near the "washdown area" and "burn pit", and that a R1/FS work
plan and report and l lealth and Safety plan be submitted to Neology The Final RI/FS Work
Plan was submitted on October 5, 1992, and was accepted by Ecology.
1' A Remedial Investigation/feasibility Study (RI/FS) was conducted from 1992
to 1993 in and adjacent to the "washdown area" by C'l12M-11111. I he RI soil samples found
numerous pesticides and herbicides in the soil to a depth of ten and one -hall Peet. "There were
two herbicides (2,4-1) and dlnoseb) found in the soil samples that did not exceed M"l"C'A
Method B soil cleanup levels The following pesticides found in the soil samples exceeded
MTCA Method L) soil cleanup levels protective of groundwater (WAC 173-3lt
-
740)(a)(1i)(A)).
• /\.ldr111
4,5 1)1)1)
I)I) I.
• Dieldrin
• I:n(losulf,.ln 1 (alpha)
I a dosul Ian II (beta)
49 I,rulosulfan Sul fate
• F ,rldrm
• I.:ndrin ;\ldcl1yde
• Endrin Ketone
C.i During the RI, lour t roundwater monitoring wells were installed in and adjacent
to the "washdown area" 'Three more groundwater monitoring wells were installed at the "burn
pit''. All seven wells were sampled in 1992 Analyses found no groundwater pesticide or
herbicide contamination attributable to the '`washdown area" or the "burn pit". Additional
CONST?.NI' I)t'('Rla: 9
\'I"fORNI'1' GENERAL. or \VAS111NGn'ON
Ecology Division
Po 1lox 10117
Olympia. \''A')SiOA-UI 17
Iv\X (160) W,-('7'0
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groundwater samples were taken in 1994 and 1995. Those analyses found 00 groundwater
pesticide or herbicide contamination attributable to the "washdown area".
11. On October 17 1994. I•;cology issued an Enforcement Order to Richardson
Airways, Inc. and Yakima Air Terminal (])E 94-TCC'4)7). This I.:me -cement Order required
Richardson Airways, Inc and Yakima Air 'I ernllnal to hire a consultant, submit to Ecology a
Cleanup Action Plan, implement the Cleanup Action Plan, and to submit progress reports and
laboratory results to Ecology. Ecology rescinded this Enforcement Order by letter on October
18, 1994.
In May of 1997, 1 colol>y, the City of Yakima, County of Yakima and Ralph
Richardson entered into a Consent decree (9'7-2-01092-5). The Consent Decree required that a
Restrictive Covenant he placed on the "washdown area" and the installation and sampling of
Live new groundwater Illorrltorlllg \yells. '\ Restrictive Covenant was placed on the property
title for the
washdown area'" on Iv11u'ch '6. 1998 't he Covenant placed property and
groundwater use constraints on the "washdown area -
installed in 1997 rhe seven
live new moniloring wells were
1992 1l/I'1' wells and the five 1997 Consent I)cci'ee wells were
sampled from September 9 1997 to .lanuar\ i 7001
Analyses found no L',rotlil(.h:V11ter
pesticide or herbicide contamination .riillbutahrle to the "\vashdown arca" Ott Richardson
All'w(Iys
I I. letter of tune 9 '20t) I oology gave the Yakuna Air l'crrninal permission to
remove three groundwater \.yells surroundinn the "burn pit" Instead, the contractor removed
all twelve Rile monitoring wells
VI. WORK 'fl) BE PERFORMED
This Decree contains a program, a total removal action of pesticide and herbicide
contaminated soils, designed to protect humanhealth and the environment from the known
release, or threatened release, of hazardous substances or contaminants at. on, 01' Irons the Site
(()NSI.:N"I' I)1::,(2Ri21: IO
A'rrolN1n1' (GI Nl?I:AI. O); WASHINGTON
I,coloey Division
I'c) !lox 10117
Olympia. \V'\ 98504-0117
rA N ( 360) 586•6760
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A. 'Yakima County and the City of Yakima shall submit a Draft Cleanup Action
Plan (D -CAP) and Draft Work Plan for Ecology review and comment. The 17 -CAP and Draft
Work Plan shall address and implement the removal action of contaminated soils from the
"washdo\\nn area" at Richardson Airways The Draft Work Plan shall include a 1lealth and
Safety Plan for Ecology's review, and a soil Confirmation Sampling Plan for Ecology's review
and approval.
B. Yakima County and the City of Yakima shall submit a Final Cleanup Action
Plan (CAP) and Final Work Plan that incorporates Ecology's written comments from the draft
submittal.
'I•I Defendantst Work Plan1
C. The 1�(:fCllGala�S shall implement the �� (.Lt by excavating contaminated
soils above M'FCA Method B Levels \-vlrich are protective of groundwater from the
'v>'ashdo\\'n area" and 1w transporting them io cur acceptinle permitted landfill. Mr.3xirrn.iin
excavation shall be timed to occur <as evidenced by low annual rtroundwatcr elevation levels in
nearby wells. All transported contaminated soil loads shall be covered,
I) rhe ivvo catch basins on the periphery of the "vvilshdown arca'" shall be cleaned,
or removed and disposed of with the othei !Dal ed soils
the Delendnnis shall contirn3 the 'clean' Site status from analyses of soil
c o nlrrinatlon samples born the. excavation Analyses shall Ian. li)r
Identified nr Section V/(1)) and (1')
all pesticides ,and l'rerbic.ide ,
f7. When soil confirmation analyses Indicate that excavation of contaminated soils
that exceed M"l'C'i\ Method I{ protective of groundwater is achieved, the excavation shall be
filled with clean fill, graded, and compacted to the satisfaction of the Yakima Air'l'erminal
C When soil confirmation analyses confirm that all contaminated soil above
M'l'CA Method B protective of groundwater has been removed, the March 26, 1998,
Restrictive Covenant may be removed from the property title
('ONSI:N•1 1)t:Cttlil; 1 i
A'rl'ORNI) (ilENI I(Al or \vns1IIN(,'roN
Neology Division
PO13ox 10117
( )hvmpia, \V,\'M504-0317
I'AX 060) 5SO-6760
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1-1 After fieldwork is completed, three copies of a Final Remediation Report shall
he submitted to Ecology
Defendants agree not to perform any remedial actions outside the scope of this
Decree unless both Parties agree to modify the Work Plan or the Implementation Schedule
(Exhibit A) to cover these actions All work conducted by Defendants under this Decree shall
be done in accordance with Chapter 173-340 WAC unless otherwise provided herein
VII. DESIGNATED PROJECT COORDINATORS
The project coordinator for 1:;cology is:
Mr Richard Bassett
15 W. Yakima Avenue., Suite 200
Yakima, WA 98902-3452
(509) 454-7839
(fax) 509/575 2809
e -hall rbas46I0).ecy wa.gov
the project coordinator for I )efcndants City of Yakima and Yakima County is
Dave tabcll
Assistant Coy Manager
City of Yakima
l'29 N )(1 �t
Yakima. WA 98901
Telephone ('BOO) 5-/5 60,10
iitI
1,(Iwrence Walters
Senior Assistant City Attorney
City of Yakima
200 S 'Third SI
Yakima \V \ 98901
Telephone. (509) 575-6030
Each project coordinator shall be responsible for overseeing the implementation of this
Decree. Ecology's project coordinator will be Ecology's designated representative for the Site
'1'o the maximum extent possible, communications between Ecology and Defendants and all
documents, including reports, approvals, and other correspondence concerning the activities
performed pursuant to the terms and conditions of this Decree shall be directed through the
CONSENT DECREE 12
ATTORNEY G NIiRAI.01' WASHINGTON
I.colo^v Division
PO lox 40117
Olympia, \VA 98501.0)17
1•AX (3(x(1) 556.6760
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project coordinators The project coordinators imay designate, in writing, working level staff
contacts for all or portions of the implementation of the work to be performed required by this
Decree.
Any party may change its respective project coordinator. Written notification shall be
given to the other party at least ten (10) calendar days prior to the change.
VIII. PERFORMANCE
All geologic and hydrogeologic work. performed pursuant to this Decree shall be under
the supervision and direction of a geologist licensed in the State of Washington or under the
direct supervision of a professional engineer registered in the State of Washington, except as
otherwise provided for by Chapters 15.220 and 18.43 RUW.
All engineering work performed pursuant to this Decree shall he under the direct
supervision of a professional engineer registered in the State of Washington, except as
other\\ isc provided for t)V RC W 18 43 130.
All construction work performed pursuant to this Decree shall be under the direct
super\ kion of a professional engineer or a qualified technician under the direct supervision of
a p1'Of(°s9roi'ra! d'IiS;lirt.'i'I' Ile professional i.'r11=.11rCel' must be 1'(.'gistd'i'ii in the State Of
Washington except as other\\ isc provided for by R('W l $ 43 I
Any (hocun'}eats st.ibniitted contam;ig geologic 11\1(11°1°
tic or cW.trneeri" work shall be
under the seal of an apl)lopriatLly licensed professional as required hs- (`haptei 18 ?.20 l:('W or
R C'W 1<8 4;.130
Defendants shall notify l cology in )\-citing of the identity of any engineer(s) and
geologist(s), contractor(s) and subcontractor(s), and others to be used in carrying out the terms
of this Decree in advance of their involvement at the Site.
I X. ACCESS
Ecology or any I eOlol4y authorized representative shall have full authority to enter and
freely move about all property at the Site that Defendants either own, control, or have access
rights to at all reasonable times for the purposes of, inter alar• inspecting records, operation
CONSENT t t c:'Rr;ti 13
A1rORNI11'c or WASHINGTON
I:colog) Division
0) Ro.x 11)117
Olympia, WA 9850,1-0117
I AX (16))) 586.6760
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logs, and contracts related to the work being performed pursuant to this Decree reviewing
Defendants' progress in carrying out the terms of this Decree, conducting such tests or
collecting such samples as I',cology may deem necessary; using a camera, sound recording, or
other documentary type equipment to record work done pursuant to this Decree;; and verifying
the data submitted to Ecology by Defendants. Defendants shall mal<e all reasonable efforts to
secure access rights for those properties within the Site not owned or controlled by Defendants
where remedial activities or investigations will be performed pursuant to this Decree Ecology
or any l.i,cology authorized representative shall five reasonable notice before entering any Site
property owned or controlled by Defendants unless an emergency prevents such notice All
Parties who access the Site pursuant to this Section shall he subject to compliance with all
rules, regulations and standards of the Transportation Safety Administration ('I'S/\), Federal
Aviation i\dministration (FAA llorncland Security the Yakima i\ir l'erminal, the City and
County of Yakima. including all applicable police lire and public safety rcgt.ilations l:culol�,v
employees and their representatives shall not be requ)ied to sign any liability release or Wai\-c:r
as a con(lition of Site property access
X. SAi1; PI INQ:, DATA SttB1't'16.i' FAtL, AND AVAttl ABI !ATV
With respect to the implementation of this Decree Defendants shall rnal:c the results of
all samphulo laboratory report,, and/or test results generated by it or on its behalf available to
f cology Pursuant to WAC' 17'i 340-8it.0(s). all sampling data shall he submitted to Ecology
in both printed and electronic formats in accordance with Section XI (Progress Reports)
I
cology s loxics Cleanup Program Policy 840 (Data Submittal Requirenmients)_ and/or any
subsequent procedures specified by Ecology for data submittal
if requested by 1•,cology, Defendants shall allow Ecology y and/or its authorized
representative to take split or duplicate samples of any samples collected by Defendants
pur:suani to the implementation of this Decree. Defendants shall notify Neology seven (7) days
in advance of any sample collection or work activity at the Site. Ecology shall, upon request,
CONSENT DECREE
\ F 'ol:Nry (,I:NI°I:nl. 01. WASI IING' ON
P.eola!v Division
lio.. 10117
I )I\'mpia, \V 19850.1 1)1 17
I',\ \ (160) 586.6760
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allow Defendants and/or its authorized representative to take split or duplicate samples of any
samples collected by Ecology pursuant to the implementation of this Decree, provided iha.t
doing so does not interfere with Ecology's sampling. Without limitation on hcolofgv's rights
under Section IX (Access), Ecology `hall notify Defendants prior to any sample collection
activity unless an emergency prevents such notice
In accordance with WAC 173-340-830(2)(a) all hazardous substance analyses shall be
conducted by a laboratory accredited under Chapter 173-S0 WAC for the specific analyses to
be conducted, unless otherwise approved by Ecology
XL PROGRESS REPORTS
S
Defendants shall submit to Ecology written monilhI:S• Progress Reports that describe the
actions taken during the previous month to implement the requirements of ibis Decree I'he
Progress Reports shall melude the following.
A. A list of on-site activities that have taken place during the month
B. Detailed description of any de\iations ['Run required tasks not other\\•lse
documented in protect plans or amendment requests
Deserrption of all deviations from the l"inal Work Plan and Schedule. required
in Section VI (Work to be Periorrned). deli mg the current month and an \, planned dc\ lallons nr
the upconnng month
I). For any deviations in the schedule a l7lan for recovering lost time and
maintaining compliance with the schedule;
1;. All raw data (including laboratory analyses) received by Defendants (:luring the
past month and an identification of the source of the sample and
F. A list of deliverables for the upcoming month if different from the schedule.,
All Progress Reports shall be submitted by the tenth (1 Q0) day of the month in which
they arc due alter the effective date of this Decree. Unless otherwise specified, Progress
CONSI;N'I Dalt I.:1, Is
GI:NI•.itAl, Or \vASI IINOTON
i e,>ii> ' I)ivisiun
I'O Il >N 40117
Olympia. \v \ 98501,01 17
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Reports and any other documents submitted pursuant to this Decree shall be sent by certified
mail, return receipt requested, to Ecology's project coordinator
XII. RETENTION OF RECORDS
During the pendency of this Decree, and for ten (10) years from the date this Decree is
no longer in effect as provided in Section XXVIII (Duration of Decree), Defendants shall
preserve all records, reports, documents, and underlying data in its possession relevant to the
implementation of this Decree and shall insert a similar record retention requirement into all
contracts with project contractors and subcontractors. Upon request of Ecology, Defendants
shall maks all records available to Ecology and allow access for review within a reasonable
time
IRR. 'R'RANSFM OF INTEREST IN PROPERTY
No voluniarY eonvcyanee or relinquishment of title: casement, leasehold
or other
interest in airy portion of the Site shall be consummated by Defendants without provision for
continued operation and maintenance of any containment system, treatment system and/or
monitories system installed or implemented pursuant to this Decree.
Prior to a Defendant's transfer of ,toy interest in all or any portion of the Site, and
durine the effective period of this Decree said Defendant shall provide a copy ul' this Decree
10 any prospective purchase), lessee. transferee, assignee, or othei successor in said interest,
and at least ilru'ty (30) days prior to any transfer. Defendant shall notify- Ecology of said
transfer. Upon transfer of any interest, said Defendant shall restrict uses and activities to those
consistent with this Consent 1)ccree and notify all transferees ol'the restrictions on the use of
the property.
XIV. RESOLUTION OF DISPUTES
A. In the event a dispute arises as to an approval, disapproval, proposed change or
other decision or action by Ecology's protect coordinator, or an itemized billing statement
CONSI;N'I' I>1:( KC;1; 16
;\'II'ORNIr-YCitNI:R,\I OF WASHINGTON
Lcnlocv Division
PO 130N 10117
oivmpia. \VA 9S501-0117
IAN (360) 586-6760
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under Section XXiV (Remeial Action Costs), the Parties shall utilize the dispute resolution
procedure set forth below
l , t Ipon receipt of Ecology project coordinator's written decision or the
itemized billing statement. Defendants have fourteen (14) days within which to notify
Lcology's project coordinator in Writing of its objection to the decision or itemized
statement.
2 The Parties' project coordinators shall then confer in an effort to resolve
the dispute If the project coordinators cannot resolve the dispute within fourteen (14)
days, Ecology's project coordinator shall issue a written decision.
i,
Defendants may then request regional management review of the
decision. This request shall be submitted in writing to the Central Region Toxics
Cleanup Program Section Manager within seven (7) days of receipt of Fcology's
project coordinator s written decision
4 1 c_olo,>>;'s IRe;nional Section Manager shall conduct a review- of the
dispute and shall endeavor to issue a written decision rc ardin t the dispute within thirty
(1O) clays of a l )ell:r dant's request tOr review
If a Defendant finds Ecology',, Regional Section Mananer s decision
unacceptable Defendants may then request final niar ag,civieni review,• of the decision
l'his request shall be si.ibmitted in writing to the Toxics Cleanup Program Manager
within seven (7) days of receipt of the Regional Section Manager's decision.
6. Ecology s Toxics Cleanup Program Manager shall conduct a review of
the dispute and shall endeavor to issue a written decision regarding the dispute within
thirty (30) days of Defendant's request for review of the Regional Section Manager's
decision 'lie 'Toxics Cleanup Program Manager's decision shall be Ecology's final
decision on the disputed matter.
('ONSFN'I' Dia;Ru. 17
A'I-'r(RNi:Y (]rNI:RAI 1)1• WASHINGTON
ON
I:entogp Division
Pe) Box 10117
I)ivinpia. \VA 9150.1-0117
FAN (160) .3$6.6760
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13, If Ecology's final written decision is unacceptable to Defendants, Defendants
have the right to submit the dispute to the Court for resolution. The Parties agree that one
judge should retain jurisdiction over this case and shall_ as necessary. resolve any dispute
arising unc.ler this Decree. In the event Defendants present an issue to the Court. for review, the
Court shall review the action or decision of Ecology on the basis of whether such action or
decision was arbitrary and capricious and render a decision based on such standard of review.
C' The. Parties agree to only utilize the dispute resolution process in good faith and
agree to expedite, to the extent possible, the dispute resolution process whenever it is used.
Where either party utilizes the dispute resolution process in had faith or for purposes of delay,
the other party may seek sanctions
1). Implementation of these dispute resolution procedures shall not provide a basis
for delay of any activities required in this Decree unless Fcolor&y agrees in writing to a
schedule extension or the Court so orders.
XV, AMEN 01" DECREE
The prolcct ccun'dinutors 'nay iiiuree to minor changes to the work to be perionned
without formally amenclnr<), this Deuce Minor changes will he documented in \\riiior& by
I':e0101),\.
Substantial changes to elle work to be p(.erlbnned shall require iorrual amendment of tl'iis
Decree Ibis Decree may only he formally amended by a written stipulation among the Parties
that is entered by the Court, or by order of the Court Such amendment shall become effective
i.rpon entry by the Court Agreement to amend the Decree sh<rll not be unreasonably withheld
by any party
Defendants shall submit a written request for amendment to leology for approval
Ecology shall indicate its approval or disapproval in writing and in a timely manner after the
written request for amendment is received If the amendment to the Decree is a substantial
change, Ecology will provide public notice and opportunity for comment Reasons for the
CONSI_iN'I I.)hCRt Ii Iii
A'iIY)RNpY (,INii) AI UI. WASHINGTON
Ixolot!y Di\ inion
Pr) 13ox •IQ 1 17
Olympia. \\4\ 91150-)-(11 I7
FAX 060) 586-676(
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disapproval of a proposed amendment to the Decree shall be stated in writing. if l.cology does
not agree to a proposed amendment, the disagreement may be addressed through the dispute
resolution procedures described in Section XIV (Resolution of Disputes).
XVI. EXTENSION OF SCHEDULE
A. An extension of schedule shall be granted only when a request for an extension
is submitted in a timely fashion, generally at least thirty (30) days prior to expiration of the
deadline for which the extension is requested and good cause exists for granting the extension.
All extensions shall be requested in writing. The request shall specify -
1. The deadline that is sought to be extended.
2.
The length of the extension sought,
3
The reason(s) for the extension:, and
Any related deadline or schedule that would be affected if the extension
were granted
13 i'hc burden shall be on Defendants to demonstrate to the satisi;ac:tion of l leology
that the request for such extension has been submitted In a timely fasluon and that s'oocl cause
exists bir granting the extension (food cause may include, but may not he limited to
Circumstances bevorul the reasonable control and despite the due
diligcnee ut Defendants including delays caused by unre:tated thud parties or I,(.ology:
Such as (hut not limited to) delays by l'eology in reviewing, approving or modifying
documents submitted by Defendant,
2, Acts of God_ including lire, flood, blittard. extreme temperatures.
storm, or other unavoidable casualty; or
3. Endangerment ent as described in Section XVII (Endangerment).
However, neither increased costs of performance of the terms of this l:)eeree nor
changed economic circumstances shall he considered circumstances beyond the reasonable
control of Defendant.
CONSI::N't t)I;(::IZfa 19
.A IiORNFY Gii\ItRAI OF WAS] iTON
Lcology Division
Pt) ION 40117
I)lvmpia, WA 9g504.011./
Iv\\ 060)586-060
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C' Ecology shall act upon any written request for extension in a timely fashion
Ecology shall give Defendants written notification of any extensions granted pursuant to this
Decree. A requested extension shall not be effective until approved by Ecology or, it required,
by the Court Unless the extension is a substantial change, it. shall not be necessary to t.n'nend
this Decree pursuant to Section XV (Amendment of Decree) when a schedule extension is
granted.
D. An extension shall only be granted for such period of time as Ecology
determines is reasonable under the circumstances Ecology may grant schedule extensions
exceeding ninety (90) days only as a result of.
Inlays ua the issuance of a necessary permit which was applied fur in a
timely manner;
Usher circumstances deemed exceptional or extraordinary by
l coloey. or
I;rldan ermeni as described in Section XVII (Endangerment)
XVII.. ENDANGERMENT
in the cent I:eoioey determines that any activity hcinl4 performed at the Site is
er( ttlrat?,
or his ilio potential to create a danger to hlrman health or the environment 1"eoilli!\ direct
Defendants to cease such activities for such period of tirrlc as ii deems nccess;ir\ to abate the
danger. I)cicndants shall immediately comply with such direction
In the event Defendants determine that any activity being performed at the Site is
creating or has the potential to create a danger to human health or the environment. Defendants
may cease such activities Defendants shall notify Ecology's project coordinator as soon as
possible; but no later than twenty-four (24) hours after making such determination or ceasing
such activities. Upon Ecology's direction, Defendants shall provide Ecology with
documentation of" the basis for the determination or cessation of such activities. If Ecology
C:ONSI.:N1' i:)Lc:RI::I:; 20
A'r'rOI(NF1' (iIiNI'.IRAI.OI• \Vi\SI IIN(,'i'ON
I.coln.‘ Division
PO 130.x ,10117
OI\•mpia. \\''\'18501-01 17
I':\ x ('4601 '386.6760
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disagrees with l)efeni.lants' cessation of activities, it may direct I)efendants to resume such
activities
1f Ecology condo's with or orders a work stoppage pursuant to this Section.
Defendants' obligations with respect to the ceased activities shall be suspended until Ecology
determines the danger is abated, and the time for performance of such activities, as well as the
time for any other work dependent upon such activities, shall he extended, in accordance with
Section XVI (Extension of Schedule), for such period of time as Ecology determines is
reasonable under the circumstances.
Nothing in this Decree shall limit the authority of Ecology, its employees, agents, or
contractors to take or require appropriate action in ilii: event or an emergency.
XVIII. COVENANT NO'i' TO SUE
A Covenant Not to Sue. In consideration of i)efendants compliance with the
tci'rns and conditions of this Decree., Ecology covenants not to instiiiilC legal or adn'nnistrativc
actions against Defendants regarding the release or threatened release of hazardous substances
covered by this Decree
his Decree covers only the Site specifically identified in the Site Diagram Wignie
and those hazardous substances that Ecology y knows arc located iit the Site as of the date of
entry of this Decree. Iihis Decree does not co\ er any other hazardous substance CO' area
l ,eoloey retains all of its authority relative to any substance 01 area not covered by this Decree
'fills Covenant Not to Sue shall have no applicability whatsoever to
(:'ruminal liability:.
Liability for damages to natural resources, and
, Any Ecology action, including cost recovery against Pl,Ps not a parte io
this Decree.
C.'ONS[N t' 1)1: cRtai: 21
A'ITORNPY (,IiNi R,\I 01• \\'i\SIIIN(,TON
luolon Division
I'o liox 101 17
olvoipia, WA 98501 411 1 7
1:A X 1160) '')4,..6760
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I I' factors not known at the tune of entry of the settlement agreement are discovered and
present a previously unknown threat to human health or the environment the Court shall
amend this Covenant Not to Sue
13. Reopeners: 1.,cology specifically reserves the right to institute legal or
administrative action against Defendants to require it to perform additional remedial actions at
the Site and to pursue appropriate cost recovery, pursuant to 1CW 70.105D.050 under the
l'ollowint? circumstances:
Upon Defendant's failure to meet the requirements of' this Decree,
including, but not limited to, failure of the remedial action to meet the cleanup
standards identified in the Cleanup Action Plan ((AP)--
1.1pon Ecology's determination that remedial action beyond the terms of
this Decree is necessary to abate an imminent and substantial cndangain (flit to human
health or the environment,
Upon of Ile.\\, inlormaition reg,ai(lii)t factors lireviotisly
unknown to Ecology, including the nature or (lt.iliutity of ha/ardour suhstances at the
Site and Ecology s determination, in light of this in inkvynitumt that further remedial
action is necessary at the Site 10 proiert human health or the enviroiioi(nt; or
Upon Ecology's determination that additional remedial ial actions ;ire
necessary to achieve cleanup standards within the reasonable restoration time frame set
forth in the ('AP
Except in the case of an emergency pri(rr to instituting legal or administrative
action against Defendants pursuant to this Section, Ecology shall provide 1)efendanls with
fifteen (15) calendar days notice of such action
CONST:N'r DECRITE 22
A-H.01(Nl'), GI(NERAI OP \NASI TING roN
Ecology Division
PO Ilox ilii 17
( )Ivmpr,(. \VA')S50.i.u1 I7
1 -AN (365) S)6-6765
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XIX. CON'T'RIBUTION Pt2(Yi'EC'J'llON
With regard to claims for contribution against Defendants, the Parties agree that
Defendants are entitled to protection against claims for contribution for matters addressed in
this Decree as provided by RCW 70.1051).040(4)(d).
XX. LAND USE RES'FRIC rioNS
If soil confirmation sampling analyses confirm that M'I'CA Method B Protective of
Groundwater has been achieved, the Restrictive Covenant presently on the Site shall be
removed from the property title.
XXI. FINANCIAL ASSURANCES
Pursuant to WAC 173-340-440(11). Defendants shall maintain sufficient and adequate
financial assurance mechanisms to cover all costs associated with the operation and
maintenance of the remedial action at the Site including institutional controls,. compliance
monitoring, and corrective measure,.
Within sixty (60) clays of the effective date of this Decree, Defendants shall submit, Io
I colOgy for review and approval an estimate of' the costs that it will incur in carrying out the
terms of this Decree includin>, operation and maintenance„ and compliance monitoring•
Within sixty ((iii) days aficr beolot \• approves the iaforementioned cost estimate, Defendants
shall provide pool' of financial assurances sufficient to cover all such costs in a form
acceptable to I ,cology
Defendants shall adjust the financial assurance coverage and provide t'eology's project
coordinator with documentation of the updated financial assurance for
A. inflation, annually; within thirty (30) days of the anniversary date of the entry of
this Decree• or if applicable, the modified anniversary date established in accordance with this
Section; or if applicable, ninety (90) days after the close of Defendants' fiscal year il' the
financial test or corporate guarantee is used; and
CONSENT DECRf;i:; 23
A'I'1'ORNI.Y OICNIiRAI. UI \VAST 11NGTON
Ecology Divisum
PO 13ox ,101 17
Olympia. WA 98504-01 17
FA\ (35(0 5(iS 57A0
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13. Changes In cost estimates, within thirty (30) days of issuance of 1?eology's
approval of a modification or revision to the CAP that result in increases to the cost or
expected duration of remedial actions. Any adjustments for inflation since the most recent
preceding anniversary date shall be made concurrent with adjustments for changes in cost
estimates. The issuance of I:.eolory's approval of a revised or modified CAP will revise the
anniversary date established under this Section to become the date of issuance of such revised
or modified CAP.
XXIIl. 1IN1)EMNIFICA"II R)N
lkfcndants agree, to the extent allowed by law, to indemnify and save and hold the
State of Washington, its employees. and agents harmless from any and all claims or causes of
action for death or injuries to persons or for loss oi' damage to property to the extent arising
from or 00 account of acts or omissions of Defendants. its officers, employees, agents, or
contractors in entering into and tml')lcmentirip this Decree. however Defendants shall not
indemnify the State of Washington nor ',a\.c nor hold Its employees incl agents harmless frond
any claims or causes or action to the extent arising out of the negligent acts or o111isSlons of the
State of Washim>,lon, or the employees or agents of the State. in entering into or -implementing
this Decree
('t)f 4Pl.i1\N(.'F Valli APPLICABLE I..A\V S
A All actions ca.irried out by Defendants pursuant to this Decree shall be done in
accordance with all applicable federal, state, and local requirements, inclu(.linp requirements to
obtain necessary permits, except as provided in P '\V 70 10`3l).090. '1•he permits or other
federal, state or local requirements that the agency has determined are applicable and that are
known at the time of entry of this Decree have been identified in the CAP
13. Pursuant to RCW 70.1051) 090(1), Defendants are exempt from the procedural
requirements of Chapters 70.91, 70 95, 70.105, 77.55, 90 48, and 90 58 ROW and of any laws
requiring or authorizing, local government permits or approvals. I lowever, 1)elendants shall
cc NStN't' t)FCRI,F. 2't
A'rr(SRNI'Y ( i.NI{RAI. or WAST liN(i'I'ON
Lcaiolt\ Division
I'O iioN i(i1 I7
Olympia, WA 98501-0117
17
FAX ( 3601 C.S6.6760
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comply with the substantive requirements of such permits or approvals. The exempt permits or
approvals and the. applicable substantive requirements of those permits or approvals, as they
are known at the time oI'entry or this Decree, have been identified in the. CAP.
Defendants have a continuin`, obligation to determine whether additional permits or
approvals addressed in RC'W 70 1051).090(1) would otherwise be required for the remedial
action under this Decree. In the event either !_geology or Defendants determine that additional
permits or approvals addressed in 12C'W 70 1051.) 090(1) would otherwise be required for the
remedial action under this Decree, it shall promptly notify the other party of' this determination.
Ecology shall determine whether Ecology or Defendants shall be responsible to contact the
appropriate state and/or local agencies, if Ecology so requires, Defendants shall promptly
consult with the appropriate state and/or local agencies and provide Ecology with written
documentation [rum those agencies of the substantive requirements those agencies believe are
applicable to the remedial action l,colo ny shall make the final determination on the additional
substantive requirements that inns! be met by Defendants and on how Defendants must meet
those requirements l.colog y shall inform Defendants rn \vritlilg of these requirements Once
establishicd by l;cologv the additional requitement, shall be. enrol e able requirements of this
Decree Defendants J,hall nor begin or continue the remedial actioir potentially subject to the
additional requirements until i,c.olo`zy makes its final (ie.terrnination
Pursuant to R('\AI 70 10>1) 000(')), in the went Ecology determines that the
exemption from complying with the procedural requirements of the laws referenced in RC'W
70.1051) 090(1) would result in the loss of' approval from a federal agency that is necessary for
the State to admmister any federal law the exemption shall not apply and Defendants shall
comply with both the procedural and substantive requirements of the laws referenced in RCA%
70.105D.090(1), including any requirements to obtain permits.
CONSENT !)I;Ctti.C; 25
,\TTORNFY (iliNiiRAI, ('1P WASI IINI'VI IN
Icology Ihvision
PO liox.11)117
Olympia. \V.\ 08501-0117
IAX (3(ill) ,86-671,0
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XXIV. REMEDIAL ACTION (20S'fS
Defendants shall pay to Ecology costs incurred by Ecology pursuant to this Decree and
consistent with WAC 173-340-550(2) "l'hese costs shall include work performed by Ecology
or its contractors for, or on, the Site under Chapter 70 1051 RCW, including remedial actions
and Decree preparation, negotiation, oversight and administration. 'These costs shall include
work performed both prior to and subsequent to the entry of this Decree. Ecology's costs shall
include costs of direct activities and support costs of direct activities as defined in WAC 173-
340-550(2). Defendants shall pay the required amount within ninety (90) days of receiving
from Ecology an itemized statement of costs that includes a summary of costs incurred, an
idcntih eat ion of involved staff, and the amount of time spent by involved staff members on the
project, A general Statement of work performed will be provided upon request. itemized
statements shall be prepared quarterly Pursuant to WAC 17;140-550(4). failure to pay
I'eolol_py's costs within ninety (90) days of receipt of the itemized statement of costs will result
in interest char e•es at the rate of twelve percent (I2%) per annum, compounded nioritlrly
Pursuant to 1Z('W 70 1051) 055 Ecology has authority to recover unreimbuised
remedial action costs by filing ;Alien against real property subject to the remedial actions,
XXV. IMPLEMENTATION OF RENIF,DJAI.., 4.CHO
If
r,cology determines that Defendants have failed without :.food cause to iiriplernent the
remedial action in whole or in part, l'.cnlogy may, after notice to Defendants, perform any or
all portions of the remedial action that remain incomplete If Ecology performs all or portions
ol'the remedial action because of Defendants failure to comply with its obligations under this
Decree, Defendants shall reimburse Ecology for the costs of doing such work in accordance
with Section XXIV (Remedial Action Costs), provided that Defendants are not obligated under
this Section to reimburse Ecology for costs incurred for work inconsistent with or beyond the
scope of this Decree
('ONSI:NI UI'C'Rtd' 26
ATTOI(NI:Y (',0Nl RAi OI. WASHINGTON
Ecology Division
PO 13ox'i0117
Olympia, WA 0850141117
I Ax (360) 586-6760
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Except where necessary to abate an emergency situation, Defendants shall not perform
any remedial actions at the Site outside those remedial actions required by this Decree, unless
Ecology concurs. in wriling. with such additional remedial actions pursuant to Section X\7
(Amendment of Decree)
XXVI. PERWDIC REVIEW
As remedial action, including groundwater monitoring. continues ii: the Site, the Parties
agree to review the progress of remedial action at the Site, and to review the data accumulated
as a result of monitoring the Site as often as is necessary and appropriate under the
circumstances (semi-annual groundwater monitoring of all wells). At least every five (5) years
alter- the initiation of cleanup action at the Site the Parties shall meet to discuss the status of the
Site and the need, irony. lir further remedial action at the, Site. At least ninety (90) days prior
to each periodic review, Defendants shall submit a report to Ecology that documents whether
human health and the environment are being protected based on the factors set firth in WAC
171-340-420(4).1 I,:cology reserves (he riftht to require further remedial action at the Site undei.
appropriate circumstances
Decree.
Ibis provision shall remain in effect far the duration ui' this
XXVVII.. PAR 6.9(. lPA6 } )N
A\ Public Participation Plan (l;5.hibit I)) is required for this Site
l colot;y sIiull re\ ie\\•
ani existing Public Participation Plan to determine its continued appropriateness and whether it
requires amendment, or ii.' 110 plan exists. Ecology shall develop a Public Participation Plan
alone or in conjunction with Defendants
Ecology shall maintain the responsibility for public participation at the Site However,
Defendants shall cooperate with Ecology, and shall:
A If agreed to by Ecology, develop appropriate mailing list, prepare (.crafts of
public notices and fact sheets at important stages of the remedial action, such as the submission
of work plans, remedial investigation/feasibility study reports, cleanup action plans, and
(:UNSI;N't' I.)i..C121,E
27
AI IORNI Y(11:Nra2AI.01 \VAsinu(rr)N
I:Cnlom. Division
PO Box .10117
Olympia, WA 98504.0117
FA\ (361)) 586-(760
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engineering design reports. As appropriate, Ecology will edit, finalize, and distribute such fact
sheets and prepare and distribute public notices of Ecology's presentations and meetings.
13. Notify I.colo ty's project coordinator prior to the preparation of all press releases
and fact sheets, and before major meetings with the interested public and local governments
Likewise, Ecology shall notify Defendants prior to the issuance of all press releases and fact
sheets, and before major meetings with the interested public and local governments For all
press releases, fact sheets, meetings, and other outreach efforts by Defendants that do not
receive prior Ecology approval, Defendants shall clearly indicate to its audience that the press
release, fact sheet, meeting, or other outreach effort was not sponsored or endorsed by
Ecology.
C. When requested by Ecology, participate in public presentations on the progress
of the remedial action at the Site. Participation may he through attendance at public meetings
to assist in answering questions, or as a presenter.
1). When requested b Fcolog •, ,.trrangc and/or continue information repositories at
the following locations
Yakima Valley Regional I .ihrai y
1 02 North "I Street
yak nna,WA 98901
ii) Ecolonv Central Regional t)lficc
15 \V Yakima Avenue. suite 200
Yakima WA 98902
At a miriinnim, copies of all public notices fact sheets, and press releases all quality assured
monitoring data. remedial actions plans and reports. supplemental remedial planning
documents, and all other similar documents relating to performance of the remedial action
required by this Decree shall be promptly placed in these repositories
XXVIII. DURATION O1+ DECREE
The remedial program required pursuant to this Decree shall be maintained and
continued until Defendants have received written notification from Ecology that the
CONSENT I)I;C'Rl:% 28
rORNlil' (iliNP,KAI, UP \\NASI IING O)N
1.co1ot:v Division
PO flux .10117
Olympia. WA 08504-0117
i' A\ (360) '586.6761
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requirements of this Decree have been satisfactorily completed This Decree shall remain in
effect until dismissed by the Court. When dismissed, Section XVIII (Covenant Not to Sue)
and Section XIX (Contribution Protection) shall survive.
XXIX. CLAIMS AGAINST TI-lE STATE
Defendants hereby agree that they will not seek to recover any costs accrued in
implementing the remedial action required by this Decree from the State of Washington or any
• of its agencies; and further, that Defendants will make no claim against the State Toxics
Control Account or any local Toxics Control Account for any costs incurred in implementing
this Decree. .Except as provided above, however, Defendants expressly reserves its right to
seek to recover any costs incurred in implementing this Decree from any other PLP. This
Section does not limit or address funding that may be provided under Chapter 173-322 WAC.
XXX. EFFECTIVE DATE
This Decree is effective upon the date it is entered by the Court.
XXXI. WITHDRAWAL OF CONSENT
If the Court withholds or withdraws its consent to this Decree, it shall be null and void
at the option of any party and the accompanying Complaint shall be dismissed without costs
and without prejudice. In such an event, no party shall be bound by the requirements of this
Decree.
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
JIM PENDOWSKI
Program Manager
23 Toxics Cleanup
(360) 407-7177
I21ii / OS
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Date.
CONSENT DECREE
ROBERT M McKENNA
Attorney General
iN A. LEVEL, SBA it 20439
Assistant Attorney General
(360) 586-6753
Date / Z////
28 ATTORNEY GENERAL OF WASHING -1-0N
Ecology Division
PO Box 40117
Olympia, WA 98504-0117
(360) 586-6770
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CITY OF YAKIMA
LAWRENCE WATTERS, WSBA # 7454
Senior Assistant City Attorney
(509) 575-6030
Date: , :2_
CITY -OF YAKIMA
:Da ir'o( 01'6..,(/
City Manager (4o /ti6 J
(509) 575-6030
Date: / % 7 -
ENTERED this _ day of
COUN
YAKIMA
'1" ZRY • U T , WS': A # 6708
Chief evil Deputy Prosecuting Attorney
(509) 574-1200
Date'
' COUNTY OF YAKIMA
residing County Commissioner
(509) 574-1200
Date: ./(22 —/7—Ofr
2008.
ROBERT N. HACKETT JR.
JUDGE/COMMISSONER,
Yakinaa-Ecrunty S'upe'rior Court
CONSENT DECREE 29
AT-fORN6.Y GENERAI. OF WASIIINGTON
Ecology Division
PO 13ox'10117
Olympia, WA 98504-0117
(360)586-6770
•
•
•
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 4k I"7
For Meeting Of October 7, 2008
ITEM TITLE: Consideration of a resolution authorizing the City Manager to sign a Consent
Decree, together with Yakima County ("County"), for the clean-up of Richardson Airways, Inc.
at the Yakima Air Terminal, with the Washington State Department of Ecology ("Department of
Ecology") pursuant to the Model Toxics Control Act ("Toxics Control Act") RCW 70.105D.
SUBMITTED BY: Dave Zabell, Assistant City Manager
Lawrence Watters, Senior Assistant City Attorney
CONTACT PERSON/TELEPHONE: Dave Zabell, (509) 575-6040
Lawrence Watters, (509) 575-6030
SUMMARY EXPLANATION: The City of Yakima and Yakima County, as joint owners of the
Yakima Air Terminal, have received approval for grant funding from the Washington State
Department of Ecology ("Ecology") for clean-up of the Richardson Airways, Inc. site at the Air
Terminal. The funding is tied to approval of a Consent Decree with Ecology that governs the
clean-up under the Model Toxics Control Act, RCW 70.105D. The attached resolution
authorizes the City Manager (or designee) to sign the Consent Decree, in concert with the
County Board of Commissioners. This will allow the clean-up to commence.
Resolution X Ordinance Other (Specify)
Contract Mail to (name and address):
Phone:
Funding Source Washington State Department of Ecology
c
APPROVED FOR SUBMITTAL: �•z-� City Manager
STAFF RECOMMENDATION: Adopt Resolution
BOARD/COMMISSION/COMMITTEE RECOMMENDATION:
COUNCIL ACTION:
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
PO Box 47600 • Olympia, WA 98504-7600 • 360-407-6000
711 for Washington Relay Service • Persons with a speech disability can call 877-833-6341
z )O -Cos
XR� R-taag�`�Z
RECEIVE
MAY 2 0 2009
SIGINEEIONG
May 15, 2009
Douglas Mayo
City of Yakima
129 North Second Street
Yakima, WA 98901
Re: Oversight Remedial Action Grant Agreement No. G0900224 for Richardson's Airway
Dear Doug:
Enclosed is your copy of the executed grant agreement providing up to $468,082 in matching funds
to the City of Yakima for the remedial actions at Richardson's Airway, Yakima Air Terminal -
McAllister Field.
You may bill for expenses no more than monthly and no less than quarterly.
Each payment request requires agency forms A-19, B2, and C2, a project progress report form for
the activities conducted during the billing period, and if changes have occurred in planned spending
rates, an updated spending plan.
You can find the necessary forms through links from the following page:
http://www.ecy.wa.gov/programs/swla/grants/rag.html . The financial forms are under "Fiscal &
Project Report Forms", and the progress report and spending plan forms are under "Related Forms"
on the same web page. I would be happy to go over the payment request submittal process with you,
at your convenience.
For your reference, I have also enclosed a copy of the Administrative Requirements For Recipients
of Ecology Grants and Loans, Ecology Publication No. 91-18, Revised September 2005.
Please contact me at (360) 407-6067 if you have any questions about the grant or invoicing process.
Sincerely,
Lydia S. Lindwall
Grant Manager, Remedial Action Grants & Loans
Solid Waste & Financial Assistance Program
lAcit,0647
Enclosures
Grant No G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
REMEDIAL ACTION GRANT AGREEMENT
BETWEEN THE
STATE OF WASHINGTON DEPARTMENT OF ECOLOGY
AND THE
CITY OF YAKIMA
This is a binding agreement entered into by and between the state of Washington Department of
Ecology, hereinafter referred to as the DEPARTMENT, and the City of Yakima, hereinafter referred
to as the RECIPIENT, to carry out the activities described herein.
RECIPIENT ADDRESS 129 North Second Street
Yakima, WA 98901
RECIPIENT REPRESENTATIVE R. A. Zais Jr., City Manager
RECIPIENT PROJECT MANAGER Doug Mayo
RECIPIENT TELEPHONE NUMBER 509-576-6678
RECIPIENT ADMINISTRATION CONTACT Doug Mayo
DEPARTMENT GRANT MANAGER Lydia Lindwall, 360-407-6067
DEPARTMENT SITE MANAGER Dick Bassett, 509-454-7839
FUNDING SOURCE LTCA
MAXIMUM ELIGIBLE COST $520,091
STATE GRANT SHARE $468,082
RECIPIENT GRANT SHARE $52,009
MAXIMUM STATE SHARE PERCENT 90%
FEDERAL TAX IDENTIFICATION NUMBER 91-6001293
EFFECTIVE DATE OF THE AGREEMENT July 1, 2007
EXPIRATION DATE OF THE AGREEMENT June 30, 2010
1
Grant No. G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
PART 1: SITE HISTORY AND BACKGROUND
Richardson's Airway, Inc., Washdown Site (FS ID# 442), now known as Yakima Air Terminal -McAllister
Field, is located at the Yakima International Airport -McAllister Field in Yakima, Washington. It is located
near the southeast corner of the Yakima Air Terminal property adjacent to the north/south taxiway of
Runway No. 34. The airport is managed by the Yakima Air Terminal, a joint agency of Yakima County and
the City of Yakima.
The site was an aerial pesticide application (crop dusting) service and aircraft storage facility that leased
property at the airport from 1953 to 1992. Operations at the facility included filling an applicator airplane
spray tank with pesticide solution and, upon completion of aerial spraying, washing, cleaning and/or rinsing
the airplane tank at the "Washdown area," a small, approximately 17,000 square foot area of the site. Soil
contaminated with chlorinated pesticides has been found at the Washdown area.
On May 9, 1997, a Consent Decree was entered in Yakima County Superior Court, Cause No. 97-
01092-5, outlining a plan to contain soil contaminants in place under an impermeable cap and a five-
year program of groundwater monitoring at or near the site. A restrictive covenant was put in place
that limits access to and development at the site. A new Consent Decree, No. 082048631, was
entered into in 2008 in to provide for additional cleanup and the prior Consent Decree was dismissed.
The desired outcome is to return the site to a more productive use to further economic development
opportunities and bring new jobs to the community.
PART 2: SCOPE OF WORK
The tasks(s) set forth below summarize the RECIPIENT'S activities to be performed under this
agreement. Costs are limited to those approved by the DEPARTMENT in the current budget plan.
All activities in the following tasks, including deliverables, must be completed by the expiration date
of this agreement unless otherwise stated in this agreement or approved by the DEPARTMENT in
writing.
The RECIPIENT shall submit all sampling data to the DEPARTMENT in both printed and electronic
formats in accordance with WAC 173-340-840(5) and the DEPARTMENT'S Toxics Cleanup
Program Policy 840: Data Submittal Requirements. Monthly/Quarterly Progress Reports must
indicate if sampling data was submitted to the DEPARTMENT during that billing period. Failure to
properly submit sampling data will result in the withholding of grant funding.
Any work performed or costs incurred prior to the effective date of this agreement will be at
the sole expense of the RECIPIENT. Attorney costs are not grant eligible.
2
Grant No. G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
TASK 1: Grant and Project Administration
This task funds RECIPIENT's eligible staff costs reasonable and necessary to manage the project and
grant related activities, and to develop the Consent Decree and project schedule, and ensure the terms
of the Consent Decree are met. Administrative costs may include meetings and communications with
consultants or the DEPARTMENT, procurement and management of consultants and construction
contractors, quality assurance oversight of all project elements, and grant billing and reporting to the
DEPARTMENT. Travel and training for RECIPIENT staff must be approved in advance by the
DEPARTMENT.
TASK 2: Investigation and Remedial Design
This task funds RECIPIENT'S eligible staff and consultant costs reasonable and necessary to conduct
site investigations and develop cleanup construction plans. This includes developing and
implementing a sampling and analysis (SAP) and Quality Assurance Project Plan (QAPP),
engineering design work and reports, and construction plans and specifications and the preparation of
any other reports or permits necessary to prepare for the cleanup construction at the site.
TASK 3: Cleanup Construction and Monitoring
This task funds RECIPIENT'S eligible staff, consultant, and contractor costs reasonable and
necessary to implement cleanup actions at the site consistent with the requirements and scope of work
established for the Consent Decree No 082048631, including preparation of the final remediation
report and construction documentation.
This task also funds RECIPIENT'S eligible staff, consultant, and contractor costs reasonable and
necessary for constructing any required long-term compliance monitoring system and conducting, up
to the first year of post -construction monitoring. This can include the installation of any needed
groundwater monitoring wells and any associated sampling systems, collecting, analyzing, and
reporting up to the first year of groundwater monitoring results to the DEPARTMENT.
3
Grant No G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
PART 3: FUND SOURCE AND BUDGET PLAN
Costs are approved consistent with the most recently approved budget plan. To change how funds are
allocated among the grant tasks, the RECIPIENT must submit a written request to the
DEPARTMENT. The DEPARTMENT must approve the revised budget plan in writing. Revised
and approved budget plans are incorporated into this agreement by reference.
A. FUND SOURCE
Total Eligible Project Cost
$520,091
?F,und
undrShare(%
azimumAFund'Amoun
Local Toxics
Control Account (LTCA)
90%
$468,082
Cash Match
10%
$52,009
B. BUDGET PLAN
Project Tasks
Estimated
Estimated Maximum
Eligible Cost
Fund Amount
1. Grant and Project Administration
$17,000
$15,300
2. Investigation and Remedial Design
$159,150
$143,235
3. Cleanup Construction and Monitoring
$343,941
$309,547
TOTAL:
$520,091
$468,082
4
Grant No. G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
PART 4: BUDGET CONDITIONS
A. Any work performed or costs incurred prior to the effective date of this agreement will be
at the sole expense of the RECIPIENT.
B. Overhead is eligible at a rate of 25 percent of staff salaries and benefits for time devoted to tasks
outlined in this agreement.
C. The DEPARTMENT'S Fiscal Office tracks expenditures at the project level. The grant manager
tracks expenditures at the task level. To increase or decrease state funding or change the scope of
work, the DEPARTMENT requires a formal amendment. The expiration date may be changed by
letter amendment.
D. In-kind services are not eligible for match.
E. Payments to the RECIPIENT from the DEPARTMENT shall be made payable to the City of
Yakima, 129 North Second Street, Yakima, WA 98901.
PART 5: SPECIAL TERMS AND CONDITIONS
A. BILLING
1. Unless otherwise approved in writing by the DEPARTMENT, the RECIPIENT shall submit a
payment request to the DEPARTMENT at least quarterly, but no more often than once per
month.
2. Payment requests shall be submitted on State Voucher forms that include an A-19, B2, C2,
and shall include a Progress Report for the billing period.
3. The final payment request shall include a Final Project Report.
4. The RECIPIENT shall provide the Progress Report and Final Project Report on
DEPARTMENT -provided forms unless otherwise approved by the DEPARTMENT.
5. The budget plan is organized by task; therefore, the RECIPIENT shall itemize costs by task on
C2 form and summarize costs by task on the B2 form.
6. The RECIPIENT shall submit one copy of each payment request and backup documentation
to the DEPARTMENT'S grant manager, and one copy to the DEPARTMENT'S regional site
manager. Failure to submit copies to both the grant manager and the site manager shall
constitute an incomplete submission and the payment request will not be reviewed or
processed until both copies have been submitted.
5
Grant No G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
B. DOCUMENTATION
1. The RECIPIENT shall include the supporting documentation for all expenses, including
RECIPIENT salary and benefits.
2. Supporting documentation includes contractor and subcontractor invoices and receipts,
accounting records, or any other form of record that establishes the appropriateness of an
expense.
3. The DEPARTMENT may request additional documentation if needed to determine if a cost
will be allowed.
4. Supporting documentation shall be clear and legible and organized by task in the order it was
placed on the C2 by the RECIPIENT.
5. RECIPIENT accounting procedures shall include maintaining supporting documentation in a
grant file. This includes cancelled checks, invoices, purchase receipts, payroll records, time
and attendance records, contract award documents, and vouchers sent to the DEPARTMENT.
The Recipient shall keep all supporting documentation for audit purposes for at least three
years after agreement closeout.
6. The RECIPIENT shall use the DEPARTMENT provided Form E, or an equivalent time sheet
approved by the DEPARTMENT, to record staff hours being billed to the grant. Upon
request, these records must be made available to the DEPARTMENT.
C. OTHER SPECIAL TERMS
1. ON-LINE CONTRACTS AND GRANTS MANAGEMENT
Washington State's Office of Financial Management is developing an on-line contracts and grants
management system. When the system becomes available, all new or active contract and grant
agreements in the state must be managed in the system. The RECIPIENT agrees to register in the
state vendor registration program and to use the on-line system.
2. TRAINING
The RECIPIENT agrees to participate in any DEPARTMENT recommended trainings to manage
agreements and prepare, process, and receive payments
3. MINORITY AND WOMEN'S BUSINESS PARTICIPATION
The RECIPIENT agrees to solicit and recruit, to the extent possible, certified minority-owned
(MBE) and women -owned (WBE) businesses in purchases and contracts initiated after the
effective date of this agreement.
Contract awards or rejections cannot be made based on MBE or WBE participation. MBE/WBE
participation is encouraged, however, and the RECIPIENT and all prospective bidders or persons
6
Grant No G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
submitting qualifications should take the following steps, when possible, in any procurement
initiated after the effective date of this agreement:
a) Include qualified minority and women's businesses on solicitation lists.
b) Assure that qualified minority and women's businesses are solicited whenever they are
potential sources of services or supplies.
c) Divide the total requirements, when economically feasible, into smaller tasks or quantities,
to permit maximum participation by qualified minority and women's businesses.
d) Establish delivery schedules, where work requirements permit, which will encourage
participation of qualified minority and women's businesses.
e) Use the services and assistance of the State Office of Minority and Women's Business
Enterprises (OMWBE) and the Office of Minority Business Enterprises of the U.S.
Department of Commerce, as appropriate.
The RECIPIENT should report payments made to qualified firms to the DEPARTMENT at the
time of submitting each invoice. Please include the following information on the
DEPARTMENT provided form (Form D):
f) Name and state OMWBE certification number (if available) of any qualified firm receiving
funds under the invoice, including any sub -and/or sub -subcontractors.
g) The total dollar amount paid to qualified firms under this invoice.
4. PROCUREMENT AND CONTRACTS
a) The RECIPIENT shall provide written certification that it will follow its standard
procurement procedures and/or applicable state law in awarding contracts; RECIPIENTS
with no formal procurement procedures must certify that they have complied with the
"Standards for Competitive Solicitation," found in the Administrative Requirements for
Ecology Grants and Loans, Ecology Publication #91-18 (Revised September 2005).
b) Upon issuance, the RECIPIENT shall submit a copy of all requests for qualifications
(RFQs), requests for proposals (RFPs), and bid documents relating to this grant agreement
to the DEPARTMENT'S site manager.
c) Prior to contract execution, the RECIPIENT shall submit all draft documents and a copy
of the draft proposed contract to the DEPARTMENT'S site manager for review and
approval. Following the contract execution, the RECIPIENT shall submit a copy of the
final contract to the DEPARTMENT'S site manager and grant manager.
5. USE OF EXISTING CONTRACTS
The RECIPIENT may use existing contracts that conform to adopted procurement procedures
and applicable state laws. The RECIPIENT shall notify the DEPARTMENT if it used
7
Grant No G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
contracts entered into prior to the execution of the grant agreement for performance of grant -
funded activities. The RECIPIENT shall submit a copy of the contract to the
DEPARTMENT'S site manager and grant manager. The grant eligibility of products or
services secured by the RECIPIENT under existing contracts used to perform the scope of
work in this agreement must be deemed allowable and reasonable by the DEPARTMENT
prior to cost reimbursement.
6. FAILURE TO COMMENCE AND SUSTAIN WORK
In the event the RECIPIENT fails to commence work on the project funded herein within six
(6) months after the effective date of this grant, or fails to sustain work in accordance with the
work schedule established in the order or decree, the DEPARTMENT reserves the right to
terminate this grant.
7. GRANT PROJECT REPORTING
a) Progress Reports: Progress reports are due at least quarterly. The RECIPIENT shall
submit progress reports to the DEPARTMENT with each payment request, and no less
frequently than quarterly, even if a payment request is not submitted. These reports shall
be in accordance with the DEPARTMENT -approved reporting format as indicated in the
Remedial Action Grant Guidelines, Publication #07-07-032 (Revised 2007), Appendix 3.
The DEPARTMENT shall not approve payments without the required progress reports.
b) Spending Plans: The RECIPIENT shall complete and submit to the DEPARTMENT a
spending plan projecting monthly expenditures for the project time period. The
RECIPIENT shall update the spending plan as needed throughout the term of the
agreement.
c) Ten -Year Project Forecast: The RECIPIENT shall submit a 10 -year budget forecast to the
DEPARTMENT for the project and provide updates as appropriate or requested by the
DEPARTMENT.
d) Final Project Report: In addition to the progress report that identifies the work performed
during the last billing period, the final payment request shall include a copy of the final
project report. This report summarizes the project goals, purpose of the actions conducted,
and outcomes of the project.
e) Progress report, final project report, and spending plan forms can be found on the
DEPARTMENT'S website at http://www.ecy.wa.gov/programs/swfa/grants/rag.html, and
in the Remedial Action Grant Guidelines, Ecology Publication #07-07-032 (Revised
2007).
8
Grant No. G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
8. ALL WRITINGS CONTAINED HEREIN
This agreement, including the appended "General Terms and Conditions," the latest approved
budget plan, and the DEPARTMENT'S Administrative Requirements for Ecology Grants and
Loans, Ecology Publication #91-18 (Revised September 2005), contain the entire
understanding between the parties, and there are no other understandings or representations
except as those set forth or incorporated by reference herein. No subsequent modification(s)
or amendment(s) of this grant agreement shall be of any force or effect unless in writing,
signed by authorized representatives of the RECIPIENT and DEPARTMENT and made part
of this agreement; EXCEPT a letter of amendment will suffice to extend the period of
performance as set forth in the grant agreement. The DEPARTMENT'S grant manager may
approve, by date stamp and signature, a revised budget plan.
9. ARCHEOLOGICAL AND CULTURAL RESOURCES
The RECIPIENT shall take reasonable action to avoid, minimize, or mitigate adverse effects
to the archeological or cultural resources. RECIPIENT shall immediately cease work and
notify the DEPARTMENT if any archeological or cultural resources are found while
conducting work under this agreement. In the event that historical or cultural artifacts are
discovered at the project site, the RECIPIENT shall also notify the state historic preservation
officer at the Department of Archaeology and Historic Preservation at (360) 586-3065.
Applicability of the National Historic Preservation Act (NHPA) may require the RECIPIENT
to obtain a permit pursuant to Chapter 27.53 RCW prior to conducting on-site activity with the
potential to impact historic properties (such as invasive sampling, dredging, or cleanup
actions).
10. PRECEDENCE
In the event of inconsistency in this agreement, the inconsistency shall be resolved by giving
precedence in the following order: (a) applicable federal and state statutes and regulations; (b)
Scope of Work and most current approved budget plan; (c) Special Terms and Conditions; (d)
Remedial Action Grant Program Guidelines (e) any terms incorporated herein by reference
including the Administrative Requirements for Ecology Grants and Loans, Ecology
Publication #91-18 (Revised September 2005); and (0 the General Terms and Conditions (SS -
010 Rev. 05/02).
9
Grant No. G0900224
Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
GENERAL TERMS AND CONDITIONS
Pertaining to Grant and Loan Agreements of
The Department of Ecology
A. RECIPIENT PERFORMANCE
All activities for which grant/loan funds are to be used shall be accomplished by the RECIPIENT and
RECIPIENT'S employees. The RECIPIENT shall not assign or subcontract performance to others
unless specifically authorized in writing by the DEPARTMENT.
B. SUBGRANTEE/CONTRACTOR COMPLIANCE
The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and
conditions of this agreement.
C. THIRD PARTY BENEFICIARY
The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this
agreement, the state of Washington is named as an express third -party beneficiary of such
subcontracts with full rights as such.
D. CONTRACTING FOR SERVICES (BIDDING)
Contracts for construction, purchase of equipment and professional architectural and engineering
services shall be awarded through a competitive process, if required by State law. RECIPIENT shall
retain copies of all bids received and contracts awarded, for inspection and use by the
DEPARTMENT.
E. ASSIGNMENTS
No right or claim of the RECIPIENT arising under this agreement shall be transferred or assigned by
the RECIPIENT.
F. COMPLIANCE WITH ALL LAWS
1. The RECIPIENT shall comply fully with all applicable Federal, State and local laws, orders,
regulations and permits.
Prior to commencement of any construction, the RECIPIENT shall secure the necessary
approvals and permits required by authorities having jurisdiction over the project, provide
assurance to the DEPARTMENT that all approvals and permits have been secured, and make
copies available to the DEPARTMENT upon request.
2. Discrimination. The DEPARTMENT and the RECIPIENT agree to be bound by all Federal
and State laws, regulations, and policies against discrimination. The RECIPIENT further
agrees to affirmatively support the program of the Office of Minority and Women's Business
Enterprises to the maximum extent possible. The RECIPIENT shall report to the
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City of Yakima
DEPARTMENT the percent of grant/loan funds available to women or minority owned
businesses.
3. Wages And Job Safety. The RECIPIENT agrees to comply with all applicable laws,
regulations, and policies of the United States and the State of Washington which affect wages
and job safety.
4. Industrial Insurance. The RECIPIENT certifies full compliance with all applicable state
industrial insurance requirements. If the RECIPIENT fails to comply with such laws, the
DEPARTMENT shall have the right to immediately terminate this agreement for cause as
provided in Section K.1, herein.
G. KICKBACKS
The RECIPIENT is prohibited from inducing by any means any person employed or otherwise
involved in this project to give up any part of the compensation to which he/she is otherwise entitled
or, receive any fee, commission or gift in return for award of a subcontract hereunder.
H. AUDITS AND INSPECTIONS
1. The RECIPIENT shall maintain complete program and financial records relating to this
agreement. Such records shall clearly indicate total receipts and expenditures by fund source
and task or object.
All grant/loan records shall be kept in a manner which provides an audit trail for all
expenditures. All records shall be kept in a common file to facilitate audits and inspections.
Engineering documentation and field inspection reports of all construction work accomplished
under this agreement shall be maintained by the RECIPIENT.
2. All grant/loan records shall be open for audit or inspection by the DEPARTMENT or by any
duly authorized audit representative of the State of Washington for a period of at least three
years after the final grant payment/loan repayment or any dispute resolution hereunder. If any
such audits identify discrepancies in the financial records, the RECIPIENT shall provide
clarification and/or make adjustments accordingly.
3. All work performed under this agreement and any equipment purchased, shall be made
available to the DEPARTMENT and to any authorized state, federal or local representative for
inspection at any time during the course of this agreement and for at least three years
following grant/loan termination or dispute resolution hereunder.
4. RECIPIENT shall meet the provisions in OMB Circular A-133 (Audits of States, Local
Governments & Non Profit Organizations), including the compliance Supplement to OMB
Circular A-133, if the RECIPIENT expends $300,000 or more in a year in Federal funds. The
$300,000 threshold for each year is a cumulative total of all federal funding from all sources.
The RECIPIENT must forward a copy of the audit along with the RECIPIENT'S response and
the final corrective action plan to the DEPARTMENT within ninety (90) days of the date of
the audit report.
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I. PERFORMANCE REPORTING
The RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or
such other schedule as set forth in the Special Conditions. The RECIPIENT shall also report in
writing to the DEPARTMENT any problems, delays or adverse conditions which will matenally
affect their ability to meet project objectives or time schedules. This disclosure shall be accompanied
by a statement of the action taken or proposed and any assistance needed from the DEPARTMENT to
resolve the situation. Payments may be withheld if required progress reports are not submitted.
Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1
through September 30, and October 1 through December 31. Reports shall be due within twenty (20)
days following the end of the quarter being reported.
J. COMPENSATION
1. Method of compensation. Payment shall normally be made on a reimbursable basis as
specified in the grant agreement and no more often than once per month. Each request for
payment will be submitted by the RECIPIENT on State voucher request forms provided by
the DEPARTMENT along with documentation of the expenses. Payments shall be made for
each task/phase of the project, or portion thereof, as set out in the Scope of Work when
completed by the RECIPIENT and certified as satisfactory by the Project Officer.
The payment request form and supportive documents must itemize all allowable costs by
major elements as described in the Scope of Work. Instructions for submitting the payment
requests are found in "Administrative Requirements for Ecology Grants and Loans", part IV,
published by the DEPARTMENT. A copy of this document shall be furnished to the
RECIPIENT. When payment requests are approved by the DEPARTMENT, payments will be
made to the mutually agreed upon designee.
Payment requests shall be submitted to the DEPARTMENT and directed to the Project
Officer assigned to administer this agreement.
2. Budget deviation. Deviations in budget amounts are not allowed without written
amendment(s) to this agreement. Payment requests will be disallowed when the
RECIPIENT'S request for reimbursement exceeds the State maximum share amount for that
element, as described in the Scope of Work.
3. Period of Compensation. Payments shall only be made for action of the RECIPIENT pursuant
to the grant/loan agreement and performed after the effective date and prior to the expiration
date of this agreement, unless those dates are specifically modified in writing as provided
herein.
4. Final Request(s) for Payment. The RECIPIENT must submit final requests for compensation
within forty-five (45) days after the expiration date of this agreement and within fifteen (15)
days after the end of a fiscal biennium. Failure to comply may result in delayed
reimbursement.
5. Performance Guarantee. The DEPARTMENT may withhold an amount not to exceed ten
percent (10%) of each reimbursement payment as security for the RECIPIENT'S performance
and a financial bond. Monies withheld by the DEPARTMENT may be paid to the
RECIPIENT when the project(s) described herein, or a portion thereof, have been completed
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City of Yakima
if, in the DEPARTMENT'S sole discretion, such payment is reasonable and approved
according to this agreement and, as appropriate, upon completion of an audit as specified
under section J.6. herein.
6. Unauthorized Expenditures. All payments to the RECIPIENT shall be subject to final audit by
the DEPARTMENT and any unauthorized expenditure(s) charged to this grant/loan shall be
refunded to the DEPARTMENT by the RECIPIENT.
7. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT
or other public entities, it shall not exceed the amount allowed under state law for state
employees.
8. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in
the Scope of Work hereunder.
K. TERMINATION
1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon
satisfactory performance by the RECIPIENT of all of its obligations under this agreement. In
the event the RECIPIENT unjustifiably fails, in the opinion of the DEPARTMENT, to
perform any obligation required of it by this agreement, the DEPARTMENT may refuse to
pay any further funds thereunder and/or terminate this agreement by giving written notice of
termination.
A written notice of termination shall be given at least five working days prior to the effective
date of termination. In that event, all finished or unfinished documents, data studies, surveys,
drawings, maps, models, photographs, and reports or other materials prepared by the
RECIPIENT under this agreement, at the option of the DEPARTMENT, shall become
Department property and the RECIPIENT shall be entitled to receive just and equitable
compensation for any satisfactory work completed on such documents and other materials.
Despite the above, the RECIPIENT shall not be relieved of any liability to the
DEPARTMENT for damages sustained by the DEPARTMENT and/or the State of
Washington because of any breach of agreement by the RECIPIENT. The DEPARTMENT
may withhold payments for the purpose of setoff until such time as the exact amount of
damages due the DEPARTMENT from the RECIPIENT is determined.
2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on
the availability of state and federal funds through legislative appropriation and state allotment.
When this agreement crosses over state fiscal years the obligation of the DEPARTMENT is
contingent upon the appropriation of funds during the next fiscal year. The failure to
appropriate or allot such funds shall be good cause to terminate this agreement as provided in
paragraph K. 1 above.
When this agreement crosses the RECIPIENT'S fiscal year, the obligation of the RECIPIENT
to continue or complete the project described herein shall be contingent upon appropriation of
funds by the RECIPIENT'S governing body; provided, however, that nothing contained herein
shall preclude the DEPARTMENT from demanding repayment of ALL funds paid to the
RECIPIENT in accordance with Section 0 herein.
3. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the
project funded herein within four months after the effective date of this agreement, or by any
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City of Yakima
date mutually agreed upon in writing for commencement of work, the DEPARTMENT
reserves the right to terminate this agreement.
L. WAIVER
Waiver of any RECIPIENT default is not a waiver of any subsequent default. Waiver of a breach of
any provision of this agreement is not a waiver of any subsequent breach and will not be construed as
a modification of the terms of this agreement unless stated as such in writing by the authorized
representative of the DEPARTMENT.
M. PROPERTY RIGHTS
1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents
any patentable property, the RECIPIENT may copyright or patent the same but the
DEPARTMENT retains a royalty -free, nonexclusive and irrevocable license to reproduce,
publish, recover or otherwise use the material(s) or property and to authorize others to use the
same for federal, state or local government purposes.
Where federal funding is involved, the federal government may have a proprietary interest in
patent rights to any inventions that are developed by the RECIPIENT as provided in 35 U.S.C.
200-212.
2. Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish
information of the DEPARTMENT; present papers, lectures, or seminars involving
information supplied by the DEPARTMENT; use logos, reports, maps or other data, in printed
reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the
DEPARTMENT.
3. Tangible Property Rights. The DEPARTMENT'S current edition of "Administrative
Requirements for Ecology Grants and Loans", Part V, shall control the use and disposition of
all real and personal property purchased wholly or in part with funds furnished by the
DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the
contrary or upon specific instructions with respect thereto in the Scope of Work.
4. Personal Property Furnished by the DEPARTMENT. When the DEPARTMENT provides
personal property directly to the RECIPIENT for use in performance of the project, it shall be
returned to the DEPARTMENT prior to final payment by the DEPARTMENT. If said
property is lost, stolen or damaged while in the RECIPIENT'S possession, the
DEPARTMENT shall be reimbursed in cash or by setoff by the RECIPIENT for the fair
market value of such property.
5. Acquisition Projects. The following provisions shall apply if the project covered by this
agreement includes funds for the acquisition of land or facilities:
a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall
establish that the cost of land/or facilities is fair and reasonable.
b. The RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for
each parcel prior to disbursement of funds provided by this agreement. Such evidence may
include title insurance policies, Torrens certificates, or abstracts, and attorney's opinions
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Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
establishing that the land is free from any impediment, lien, or claim which would impair
the uses contemplated by this agreement.
6. Conversions. Regardless of the contract termination date shown on the cover sheet, the
RECIPIENT shall not at any time convert any equipment, property or facility acquired or
developed pursuant to this agreement to uses other than those for which assistance was
originally approved without prior written approval of the DEPARTMENT. Such approval
may be conditioned upon payment to the DEPARTMENT of that portion of the proceeds of
the sale, lease or other conversion or encumbrance which monies granted pursuant to this
agreement bear to the total acquisition, purchase or construction costs of such property.
N. RECYCLED/RECYCLABLE PAPER
All documents and materials published under this agreement shall be produced on recycled paper
containing the highest level of post consumer and recycled content that is available. At a minimum,
paper with 10 percent post consumer content and 50 percent recycled content shall be used.
Whenever possible, all materials shall be published on paper that is unbleached or has not been
treated with chlorine gas and/or hypochlorite.
As appropriate, all materials shall be published on both sides of the paper and shall minimize the use
of glossy or colored paper and other items which reduce the recyclability of the document.
O. RECOVERY OF PAYMENTS TO RECIPIENT
The right of the RECIPIENT to retain monies paid to it as reimbursement payments is contingent
upon satisfactory performance of this agreement including the satisfactory completion of the project
described in the Scope of Work. In the event the RECIPIENT fails, for any reason, to perform
obligations required of it by this agreement, the RECIPIENT may, at the DEPARTMENT'S sole
discretion, be required to repay to the DEPARTMENT all grant/loan funds disbursed to the
RECIPIENT for those parts of the project that are rendered worthless in the opinion of the
DEPARTMENT by such failure to perform.
Interest shall accrue at the rate of twelve percent (12%) per annum from the time the DEPARTMENT
demands repayment of funds. If payments have been discontinued by the DEPARTMENT due to
insufficient funds as in Section K.2 above, the RECIPIENT shall not be obligated to repay monies
which had been paid to the RECIPIENT prior to such termination. Any property acquired under this
agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and the
RECIPIENT'S liability to repay monies shall be reduced by an amount reflecting the fair value of
such property.
P. PROJECT APPROVAL
The extent and character of all work and services to be performed under this agreement by the
RECIPIENT shall be subject to the review and approval of the DEPARTMENT through the Project
Officer or other designated official to whom the RECIPIENT shall report and be responsible. In the
event there is a dispute with regard to the extent and character of the work to be done, the
determination of the Project Officer or other designated official as to the extent and character of the
work to be done shall govern. The RECIPIENT shall have the right to appeal decisions as provided
for below.
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Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
Q. DISPUTES
Except as otherwise provided in this agreement, any dispute concerning a question of fact arising
under this agreement which is not disposed of in writing shall be decided by the Project Officer or
other designated official who shall provide a written statement of decision to the RECIPIENT. The
decision of the Project Officer or other designated official shall be final and conclusive unless, within
thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to
the Director of the DEPARTMENT a written appeal.
In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the
opportunity to be heard and to offer evidence in support of this appeal. The decision of the Director or
duly authorized representative for the determination of such appeals shall be final and conclusive.
Appeals from the Director's determination shall be brought in the Superior Court of Thurston County.
Review of the decision of the Director will not be sought before either the Pollution Control Hearings
Board or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT
shall proceed diligently with the performance of this agreement and in accordance with the decision
rendered.
R. CONFLICT OF INTEREST
No officer, member, agent, or employee of either party to this agreement who exercises any function
or responsibility in the review, approval, or carrying out of this agreement, shall participate in any
decision which affects his/her personal interest or the interest of any corporation, partnership or
association in which he/she is, directly or indirectly interested; nor shall he/she have any personal or
pecuniary interest, direct or indirect, in this agreement or the proceeds thereof.
S. INDEMNIFICATION
1. The DEPARTMENT shall in no way be held responsible for payment of salaries, consultant's
fees, and other costs related to the project described herein, except as provided in the Scope of
Work.
2. To the extent that the Constitution and laws of the State of Washington permit, each party
shall indemnify and hold the other harmless from and against any liability for any or all
injuries to persons or property arising from the negligent act or omission of that party or that
party's agents or employees arising out of this agreement.
T. GOVERNING LAW
This agreement shall be governed by the laws of the State of Washington.
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Richardson's Airway (Yakima Air Terminal- McAllister Field)
City of Yakima
U. SEVERABILITY
If any provision of this agreement or any provision of any document incorporated by reference shall
be held invalid, such invalidity shall not affect the other provisions of this agreement which can be
given effect without the invalid provision, and to this end the provisions of this agreement are
declared to be severable.
V. PRECEDENCE
In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency
shall be resolved by giving precedence in the following order: (a) applicable Federal and State
statutes and regulations; (b) Scope of Work; (c) Special Terms and Conditions; (d) Any terms
incorporated herein by reference including the "Administrative Requirements for Ecology Grants and
Loans"; and (e) the General Terms and Conditions. SS -010 Rev. 05/02
IN WITNESS WHEREOF, the parties hereby sign this Grant:
STATE OF WASHINGTON CITY OF YAKIMA
DEPARTMENT OF ECOLOGY
ett-tt-6e yq, 1Sauteo 5//e//6
Laurie G. Davies Date R. A. Zais . Date
Program Manager City Manager
Solid Waste and Financial Assistance
CITY CONTRAC T NO: p?009(oS'
RESOLUTION NO: R- ma- 1'f Z
Approved as to form only Assistant Attorney General
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