2010/08/04 Council Agenda Packet

5.3.1 Removal of Unacceptable Fill. In connection with Developer's feasibility review of the Property, certain unacceptable fill material, not capable of supporting building foundations, was identified on the Property, as described in detail in the Geotechnical Reports. This unacceptable fill material must be removed from the Property for purposes of Developer's construction of the Project. Based on the depth of the unacceptable fill indicated in the Geotechnical Reports, the excavation required under the Approved Plans and Specs for the Project will encompass removal of all of the unacceptable fill in the normal course of construction. Removal and disposal of the unacceptable fill will be completed at no additional cost to the City; provided, however, if additional unacceptable fill material is encountered at the building foundation level and is required to be removed and replaced with acceptable fill materials for purposes of obtaining engineering certification by the Project geotechnical engineer, the City agrees to reimburse Developer for the added reasonable costs associated with the excavation and disposal of the unacceptable fill material located below the grade of the Project's designed footing and foundation level and for the costs of replacement with acceptable fill material. The City shall reimburse Developer for such additional costs within thirty (30) days of receipt of written demand therefor. The demand for reimbursement shall include evidence reasonably satisfactory to show the cost of excavation, disposal,and replacement with acceptable fill material. 5.3.2 Removal of Contaminated Soil. 5.3.2.1 Removal and Reimbursement. In connection with Developer's feasibility review of the Property, Contaminated Soil was identified on the Property and in the Colby Avenue right-of-way (collectively, the "Site," as defined under the Washington Model Toxics Control Act ("MTCA"), Chapter 70.105D RCW, and the MTCA regulations adopted by the Department of Ecology ("MTCA Regs"), Chapter 173-340 WAC). The Site and Contaminated Soil are described in more detail in Geotechnical Reports. From and after the Effective Date, City and Developer shall promptly provide each other with copies of all existing studies, reports, correspondence, and similar material obtained by either party regarding the Contaminated Soil and/or cleanup of the Site. The Developer shall mitigate, remove and dispose of the Contaminated Soil in accordance with all applicable laws to the extent necessary for the completion of the Project. The City shall reimburse the Developer for all costs associated with such mitigation, removal and disposal that are in excess of the costs that Developer would have incurred if the Contaminated Soil were material acceptable for disposal at a clean disposal site. The City shall reimburse Developer for such excess costs within thirty(30) days after receipt of a written request. The request for reimbursement must include evidence reasonably satisfactory to show the cost of mitigation,removal and disposal and the excess costs incurred. 5.3.2.2 No Further Action Letter. The City shall diligently pursue a "No Further Action" from Ecology for the Site in accordance with the MTCA Regs. The Developer acknowledges that the City may seek a "No Further Action" letter that allows for some Contaminated Soils to remain on the Property, and the Developer shall fully cooperate with the City's pursuit of such a letter. The City shall pay for all reasonable costs relating to the pursuit and issuance of the "No Further Action" letter, including without limitation costs of testing and professional services. -7- 51083924.1