HomeMy WebLinkAboutIndeminity Agr/Oshkosh Area School District INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and effective as of May 1, 2013, (the
"Effective Date") by and between the City of Oshkosh (the "City") and the Oshkosh Area School
District(the "District").
WITNESSETH:
WHEREAS, the District wishes to remove from its Oaklawn Elementary School site a
certain amount of soil, samples of which have been tested and analyzed (the "Tested Materials");
WHEREAS, the City is willing to accept the Tested Materials to use as cover at the
Knapp Street Quarry Landfill (the "Quarry Site") provided that the City is reimbursed for any
out-of-pocket costs incurred and the District accepts any risk relating to Contaminants in the
Tested Materials;
WHEREAS, the City's acceptance of the Tested Materials will provide significant cost
savings to the District due to avoided disposal costs;
WHEREAS, the District has provided the City the following reports and information
relating to the Tested Materials (collectively, the "Environmental Reports"):
(a) Phase I Environmental Site Assessment by EMC, Inc., dated August 9, 2012,
titled"Oaklawn Elementary School and Residential Duplex Properties";
(b) Draft Limited Subsurface Investigation Report by EMC, Inc., dated October 15,
2012.
(c) Laboratory Test Results from Test America dated September 7, 2012, September
27, 2012, October 5, 2012, and October 12, 2012.
WHEREAS, the Environmental Reports indicate that the Tested Materials are impacted
by low levels of certain metals and petroleum volatile organic compounds (together, the
"Contamination Impacts");
WHEREAS, the City, through its consultants, has reviewed the Environmental Reports
and has determined, based on the information contained in the Environmental Reports, that the
Tested Materials are acceptable for use at the Quarry Site;
WHEREAS, the Wisconsin Department of Natural Resources has approved the use of the
Tested Materials at the Quarry Site, through a Low Hazard Exemption for Beneficial Reuse of
Contaminated Soil dated January 29, 2013;
NOW THEREFORE, in consideration of the mutual coven set..forth herein-af#d Atha
good and valuable consideration, the receipt and sufficiency of w #tii Whereby' acicnow1ed el ;
the City and the District agree as follows: U i
MAY 132013
CITY �. } E
1. The District shall transport and deliver the Tested Materials to the Quarry Site, in
accordance with the direction and supervision of the City or the City's consultants. The District
shall be solely responsible for the expense of the transportation and delivery of the Tested
Materials to the Quarry Site.
2. The City shall develop a grading plan for the Quarry Site (the "Grading Plan")
using the Tested Materials, and shall obtain all required permits and approvals for the Grading
Plan, including but not limited to permits and approvals from the Wisconsin Department of
Natural Resources.
3. The District shall reimburse the City for all out-of-pocket expenses, including
attorneys' fees and consultants' fees, relating to implementation of the approved Grading Plan,
including but limited to obtaining all required permits and approvals for the approved Grading
Plan, reviewing the Environmental Reports, and drafting and reviewing this Agreement
(together, the "Reimbursable Costs"). The District shall pay all Reimbursable Costs within 30
days of receipt of an invoice for such Reimbursable Costs.
4. The District hereby indemnifies and agrees to hold harmless and defend the City
and all of its elected officials, officers, and employees, from any and all claims, causes of action,
losses, costs, expenses, damages, injuries, obligations, liabilities, penalties, fines, or suits,
including, without limitation, attorneys' and consultants' fees and expenses, of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of or in any way related to (a)
Contaminants in the Tested Materials, whether such Contaminants are known or unknown to the
District, and whether such Contaminants are noted or not noted in the Environmental Reports, or
(b) any failure to provide the Tested Materials as provided in this Agreement, except where
caused by the negligent acts or omissions of the City's officers, employees, or agents.
4.1 For the purpose of this Agreement, the word "Contaminants" shall mean:
any hazardous, toxic or dangerous waste, substance (including, but not limited to, any
petroleum derivative substance) or material defined as such in (or for purposes of)
any state, federal, or local environmental laws, regulations, decrees, or ordinances, in
the Comprehensive Environmental Response Compensation and Liability Act
("CERCLA"), as amended, or in any so-called state or local "Superfund,"
"Superlien," or "Clean-up Lien" law (including but not limited to Wisconsin Statute
Chapter 292), or any other federal, state or local regulation, order or decree relating to
or imposing liability or standards of conduct concerning any such substances or
materials or any amendments or successor statutes thereto.
5. Except as provided in paragraph 6, nothing in this Agreement is intended as a
waiver of the City's or the District's right or opportunity to rely upon the municipal limitations
and immunities contained within Wisconsin law, which include, but are not limited to, Sections
345.05, 893.80, and 893.83, Wisconsin Statutes. Such damage limits, caps and immunities are
intended to be preserved and are incorporated into this Agreement and shall govern all disputes,
contractual or otherwise, as they apply to the municipality and its agents, officers, and
employees.
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