HomeMy WebLinkAboutCAG1990-0136 - Original - Eberharter & Gaunt, Inc. - King County Library System - Indemnity Agreement - 212 2nd Avenue North Library - 10/10/1991 AFTER RECORDING RETURN TO:
PROPERTY MANAGER
THE CITY OF KENT
220 SOUTH FOURTH STREET
KENT, WASHINGTON 98032
INDEMNITY AGREEMENT
THIS AGREEMENT is entered into this 0- day of OCIMM- 1991, by
and between KING COUNTY LIBRARY SYSTEM, a Washington municipal corporation
(hereinafter the "County"); the CITY OF KENT, a Washington municipal corporation
(hereinafter the "City"); and EBERHARTER & GAUNT, INC., a Washington corporation
(hereinafter "Eberharter").
RECITALS
1. On June 11. 1990 , Eberharter was awarded the contract for
construction of the Kent-King County Library, located at 212 - 2nd Ave. North ,
Kent, Washington. The library site (hereinafter the "Property") is legally described as
follows:
PARCEL"A":
BEGINNING AT THE NORTHEAST CORNER OF BLOCK 4,YESLER'S FIRST
ADDITION TO THE TOWN OF KENT,ACCORDING TO THE PLAT THEREOF
RECORDED IN VOLUME S OF PLATS,PAGE 64,IN KING COUNTY,
WASHINGTON,
THENCE WEST ALONG THE NORTH LINE OF SAID BLOCK 4,A DISTANCE OF
256 FEET TO THE NORTHWEST CORNER OF SAID BLOCK 4;
THENCE SA DEGREE 58'00"W.ALONG THE WEST LINE OF SAID BLOCK 4,
A DISTANCE OF 391 A2 FEET;
THENCE S 89 DEGREES 27'00" E. 112.01 FEET;
THENCE N.89 DEGREES 22'00" E. 3.04 FEET;
THENCE N 1 DEGREE 58'00" E 107.11 FEET;
THENCE EAST 14196 FEET,MORE OR LESS,TO THE EAST LINE OF SAID
BLOCK 4;
THENCE NA DEGREE 58'00"E.ALONG THE EASTLINE OF SAID BLOCK 4, A
DISTANCE OF 285.29 FEET,MORE OR LESS,TO THE POINT OF THE
BEGINNING;EXCEPT THE SOUTH 7 5 FEET OF THE WEST 115.05 FEET
THEREOF; LESS RIGHT OF WAY FOR W.SMITH ST.
EASEMENTS'
Page 1 of 6 pages
1 . EASEMENTS GRANTED UNDER KING COUNTY RECORDING NUMBERS
1189476, 3194402. AND 3768450 TO NORTHERN PACIFIC RAILWAY
COMPANY AND CHICAGO,MILWAUKEE AND ST.PAUL RAILWAY COMPANY
FOR SPUR TRACKS AND ELECTRIC TRANSMISSION SYSTEM.
2. EASEMENT GRANTED UNDER KING COUNTY RECORDING NUMBER
8411020476 TO PUGET SOUND POWER AND LIGHT COMPANY FOR
UNDERGROUND ELECTRIC SYSTEM.
PARCEL"B".
ADDED 8-12-88
THAT PORTION OF BLOCK 4,YESLER'S FIRST ADDITION TO KENT,
ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME S OF PLATS,
PAGE 64,IN KING COUNTY,WASHINGTON,DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF BLOCK 4 OF YESLER'S FIRST
ADDITION TO KENT,WASHINGTON;THENCE N.1 DEGREE 58'00" E.ALONG
THE EAST LINE OF SAID BLOCK 4114.11 FT.TO THE TRUE POINT OF THE
BEGINNING;THENCE CONTINUING NA DEGREE 59'00" E ALONG THE EAST
LINE OF SAID BLOCK 4 80.6 FT.;THENCE WEST 141.96 FT.;THENCE S 1
DEGREE 58'00" W. 107.11 FT., THENCE N.89 DEGREES 22' E 17 01 FT ;
THENCE N.88 DEGREES 04' E.2015 FT.;THENCE N 85 DEGREES 33' E
20.22 FT.;THENCE N. 61 DEGREES 53' E. 20.24 FT.; THENCE N 77
DEGREES 38' E. 20.30 FT.;THENCE N 72 DEGREES 58' E. 20.37 FT ;
THENCE N.68 DEGREES 0& E.20.33 FT.;THENCE N.63 DEGREES 4T E
8.01 FT.TO THE POINT OF BEGINNING;LESS THE SOUTH 7.5 FEET OF SAID
TRACT.
2. During construction, it was discovered that the prior owners of the Property
allowed the soil to become contaminated by petroleum or a petroleum-based product. As
a result, the City and County decided to hire a consultant, Rittenhouse-Zeman &
Associates, Inc. (hereinafter the "Consultant"), to analyze the problem and recommend a
clean-up solution.
3. The Consultant recommended a method of "landfarming" of the contaminated
soils found on the Property, which involves the mixing of the contaminated soils with
cement, replacement of both back on the Property, and then capping of the admixed sods
with a layer of asphalt. This method is described in the Consultant's report dated July
1990, #W-6346-6 (attached to this Agreement as Exhibit A, and by this reference
made a part hereof), and was submitted to the Washington State Department of Ecology
for approval. The Summary of Remediation Documentation dated 2 July 1991,
W-5618-1 (attached to Exhibit A) explains the decision to use cement with the soil to
encapsulate the pollutant.
4. The City and County decided to follow the Consultant's recommendations and to
implement this clean-up procedure on the Property. Direction and authorization from
the City and County to Eberharter to implement this procedure are found in Change Order
21 (attached to this Agreement as Exhibit B, and by this reference made a part hereof).
5. Eberharter has agreed to implement this procedure as recommended by the
Consultant and described in Exhibit A, for the sum mentioned in Exhibit B. In addition,
Eberharter has requested that the City and County indemnify it for any liability which
may result or arise out of performance of this clean-up method. Eberharter has relied
upon the adequacy of the clean up method described in Exhibit A as fully complying with
local, state and federal taws related to the clean-up of contaminated property
Page 2 of 6 pages
6 In exchange for Eberharter's agreement to implement the procedure in
compliance with its instructions and as the process is described in Exhibit A, the City
and County have agreed to indemnify Eberharter for its performance of this clean-up
procedure, but such indemnification shall be limited in scope and specifically exclude
Eberharter's negligent performance of intentional misconduct, as further described
herein.
TERMS
7. Eberharter's Compliance with Consultant's Recommendations. Eberharter
hereby agrees, as a condition to this Indemnity Agreement, that it shall not cause or
permit the release, treatment, handling, disposal, transfer or storage of hazardous
substances on the Property, as such substances are defined in the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601, et
seq.), and/or the Model Toxics Control Act (RCW Ch. 70.105D), except in compliance
with all applicable federal, state and local laws and regulations; or except as described in
Exhibits A and B, and as specifically recommended by the Consultant and authorized by
the City and County. Nor shall Eberharter cause or permit, as a result of any
international or unintentional act of omission, on the part of Eberharter, any employee,
subcontractor or agent, a release of hazardous substances on the Property except as
described in this paragraph.
8. Indemnification, The City and County shall defend, hold harmless, and
indemnify Eberharter and its officers, agents, employees, and subcontractors from and
against any claims, demands, penalties, fees, liens, damages, losses, expenses, including
attorney fees and costs, or other legal proceedings brought against Eberharter by any
third party, including a governmental entity, for damage to property or the
environment, or for any court or administrative order to stop work, arising out of
Eberharter's performance of the work described in Exhibits A and B for the mixture and
placement of contaminated soils; PROVIDED, that Eberharter performs such work in
compliance with all applicable federal, state, and local laws and regulations, or in the
manner described in Exhibits A and B.
9. Limits of Indemnification. The City and County SHALL NOT indemnify
Eberharter for liability for damage to property, the environment or injury to persons
which occur as a result of such damage to the environment, which is either caused by or
results from the sole negligence of Eberharter, its employees, subcontractors, or agents.
The indemnification provided by the City and County to Eberharter for liability for
damage arising out of damage to property, the environment or injury to persons which
occur as a result of such damage to the environment, which is caused by or results from
the concurrent negligence of Eberharter and the City and County, shall apply only to the
extent of the negligence of the City and County, and their officials, officers, employees,
agents, and representatives.
10. Responsibility of the City and County. The City and County shall have the
responsibility for the investigation, direction, and authorization for all actions related
to theremediation of the contaminated soils found on the Property, as described in
Exhibits A and B In addition, the City and County shall have the sole responsibility for
securing all necessary permits, furnishing all warnings, notices or postings, and for the
Page 3 of 6 pages
0 •
performance of all inspections, tests, and reports required by federal, state, or local
laws related to the existence or remediation of the contaminated soils.
11. Right to Inspect. The City and County, or any of its officials, officers,
employees, agents, or representatives shall have the authority to enter on the Property
at any stage in the remediation process, to inspect and ascertain Eberharter's compliance
with all covenants stated in this Agreement and its exhibits.
12. Scope. The indemnification provided by this Agreement is specifically
limited to the process described in the exhibits hereto, applied to the Property. This
Agreement shall not be construed as an indemnification by the City and County to
Eberharter, its employees, subcontractors, or agents for any liability arising from any
other intentional or unintentional release or entry of any hazardous substance into the
environment of the Property, including, without limitation, the abandonment or disposal
of containers of hazardous substances.
13. Attorney Fees. In the event of litigation or arbitration between the parties
involving this Agreement, the prevailing party shall be awarded reasonable attorney fees
and costs against the other party.
14. Entire Agreement. This Agreement and its exhibits represent the entire
agreement of the parties relating to hazardous waste considerations of the process of
underlayment using admixed soils on the Property. There are no other verbal or other
agreements that modify or affect this agreement. All modifications or waivers of any
conditions of this Agreement shall be in writing signed by the appropriate parties.
Page 4 of 6 pages
I
EXECUTED this_,L.eday of r , 1991
KING COUNTY
DLIBRARY
`SYSTEM
By ✓mow / /
Its Director
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Bill Ptacek is the person who appeared
before me, and said person acknowledged that he/she signed this Instrument,and on oath stated
that he/she was authorized to execute this Instrument and acknowledged it as the Director of The
KING COUNTY LIBRARY SYSTEM to be the free and voluntary act of such party for the uses and
purposes therein mentioned in the instument.
Subscribed and sworn before me this Aft day of J19y
Notary Public:
My Commission Expires
T CITY OF KENT
By �'�\\. — .•
Its
STATE OF WASHINGTON )
)as
COUNTY OF KING )
1 certify that I know or have satisfactory evidence that f,)W k9JAj W t Is the person who
appeared before me,and said person acknowledged that he/she signed this instrument,and on
oath stated that he/she was authorized to execute this instrument and acknowledged it as the
_ 14A-w t4_ of THE CITY OF KENT to be the free and voluntary act of such party for
the uses and purposes therein mentioned in the instument
Subscribed and sworn before me this ff ) day of 66T. 19 l
Notary Publlc.!�{�L �54� fq a-�
My Commission Expires
Page 5 of 6 pages
E�EIIHARTE CONSTRUCTION INC.
By j p.
Its
STATE OF WASHINGTON )
) ss
COUNTY OF 141Ci )
I certify that I know or have satisfactory evidence thatC4yptp �$qfjjtft the person who
appeared before me,and said person acknowledged that he/she signed this instrument,and on
oath stated that he/she her/she was authorized to execute this instrument and acknowledged it as the
ti 1W , of EBERHARTER CONSTRUCTION, INC.to be the free and voluntary
act of such party for the uses and purposes therein mentioned in the instument
Subscribed and sworn before me this � � day of I)CT _ 19-�U—.
Notary Public:
My Commission Expires
Page 6 of 6 pages
�i King Cou y Library Sy�s�eIn
300 8th Avenue North • S ttle,Washington 98109 1 • (206)4b2-9600
COPY RJ
October 15, 1991 OCT 1 Kent City
Ms. Carol Morris
City of Kent
220 4th Avenue South
Kent, WA 98032
Dear Carol:
Enclosed is an original copy of the Indemnity Agreement.
All attachments for this agreement are being held by Jim
Hanson.
If you should have any questions please call me at 684-6687 .
Sincerely,
Ron K. Bills
Architectural Project Coordinator
cc: Kay Johnson
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