HomeMy WebLinkAbout2008-07-28 08-258 ORDERItem No, 0,8 ?53
Dete: July 28, 2008
Item/Subject: Order, Aulhorking Execution of Tolling and Standstill Agreement— Mallinckrodt
LLC
Responsible Department: Legal
Commentary:
Years ago, mercury contamination was discovered In the Penobscot River south of Ovington.
The HoftmChem Plant in Onington was found to be a source of contamination. Mallinckrodt LLC
formedyoperated the HoltraChem Plant. Mallinckrodt alleges that other parties, including the
Oty of Bangor through its wastewater treatment plant, have contributed th mercury
contamination and should also be liable. Mallinckrodt is continuing a court ordered independent
study to determine if remediation of mercury contamination In the Penobscot R"rver is necessary
and feasible. They have stated that they do not wish to initiate litigation against others alleged
to have conthbuted mercury to the site until the study Is completed in 2010. Therefore, to avoid
the assertion of an affirmative defense of the statute of limitations In the event that they wait m
file any litigation, Mallinckrodt Is requesting that potential defendants, including the pry of
Bangor, execute a Tolling and Standstill Agreement.
Deparhnent Head
Manager's Comments:
An executive session M discuss this Issue was held by the Transportation and Infrastructure
Commiigee. (�yjrUja, &a&— /
City Manager
Annunciated Information:
I
Introduced for
X Passage
_ First Reading
Referral
os 258
The City Manager, Edward A. Barrett is hereby authorized, on behalf of the City of Bangor, to
execute a Tolling and Standstill Agreement between the City of Bangor and Mallinckrodt LLC
substantially in the same form as attached hereto and In a final form as approved by the Cry
Solicitor or Assistant City Solicitor.
Assigned to Councilor Blmchaeee July 28. 20"
CITY OF BANGOR
(TITLE.)
ORDER, Authorizing Execution of Tolling and Standstill Agreement— Mallinckrodt
LLC
WHEREAS,
mercury contamination has been found in the Penobscot River south of Ordngton,
Maine; and
WHEREAS,
Mallinckrodt LLC formerly operated the HoltracChem Plant in Orrington , Maine; and
WHEREAS,
Mallinckrodt LLC has been found liable for said mercury contamination as a result of
its operation of the HomaChem Plant; and
WHEREAS,
Mallintivodt LLC alleges that other parties, Including the City of Bangor through its
wastewater treatrnent plant, are comnbutors of mercury contamination and should
also be liable for said merrury contamination south of Ovington; and
WHEREAS,
Mallinckrodt is continuing a court ordered independent study to determine if
remediation of mercury contamination in the Penobscot River is necessary and
feasible; and
WHEREAS,
Mallinckrodt has expressed a desire not W initiate litigation against others alleged W
have contributed mercury to the site until said study is completed in 2010; and
WHEREAS,
to avoid the assertion of an affirmative defense of the statute of limitations in the
event Nat they watt to file any litigation, Mallinckrodt is requesting that potential
defendants, including the City of Bangor, ececum a Tolling and Standstill
Agreement;
NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR
THAT
The City Manager, Edward A. Barrett is hereby authorized, on behalf of the City of Bangor, to
execute a Tolling and Standstill Agreement between the City of Bangor and Mallinckrodt LLC
substantially in the same form as attached hereto and In a final form as approved by the Cry
Solicitor or Assistant City Solicitor.
July 28. 2008
tl tion R e am seconded
for Pdsease
P sed
DR CITY
Y 08-258
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and vdst111 Agtement - Melinaltod.
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20M TOLLING AND STANDSTILL AGREEMENT
This 2008 Tolling and Standstill Agmemrnt C`Agreement") is made by and
among Mallinckrodt LLC and Bangor Wastewater Treatment Facility (somethnes collectively
refected to herein as the "Parties" or individually as the "Party"), whose authorized
representatives have executed this Agreement
WHEREAS, there is mercury contamination in the Penobscot River and Estuary
end in the sediments of the Riva and Estumy ("Penobscot River Contamination").
WHEREAS, Mallinckm it LLC believes it may have claims against Bangor
Wastewater Treatment Facility for injunctive relief, allocation, cost recovery, damages or
contribution relating to the Penobscot River Conteroinenion under applicable law, including but
not limited in Section 107 of CERCLA, 42 U.S.C. 4 9(507, Section 7002 ofRCRA, 42 U.S.C. §
6972, and Maine common law.
NOW, THEREFORE, in consideration of the foregoing, the Parties mutually
agree as follows:
1. During the Effective Period of this Agreement, as defined in Paragraph 3,
below, each Party to this Agreement, on behalf of itself, its successors and assigns, covenants not
to sue any other Perry to this Agreement on any claim or cause of action it may have relating to
or raising in connection with the Penobscot River Contamination("Claim'). This covenant not
to site shall remain in effect up to and including the lost calendar day of the Effective Period.
2. In consideration of the foregoing, each Party, on behalf of itself and its
successors and assigns, agrees that the Effxtive Period shall not be included in the calculation of
the time that has elapsed for purposes of determining whether any Party's Claims against it are
barred by any applicable statute of limitations, statute of repose, laches, or any other possible bat
or restriction based on timing (eullectively"timing restrictions").
3. The "Effective Period" shall mean that period of time beginning on July 1,
2008, and continuing to and including the fifth (5th) calendar day after the day on which any
Party provides notice to the other Party to this Agreement, pursuant to Paragraph 4, below, that it
is terminating the Agreement (the day on which notice is provided shall not be included in
calculating the five (5) calendar day period).
4. Each Party has the right to terminate this Agreement many time. Notice
to terminate Us Agreement shall be provided by such means that will ensure its timely receipt,
and will he deemed to have been provided on the date then the other Parties actually receive the
notice. Notice shall be sent to cath Party's representative, as designated on Exhibit A. Each
Party shall have the right to change its representative upon ten (10) days written notice to the
other Parties.
5. This Agreement contains the entire Agreement between the Parties, and
this Agoo meut may not he enlarged, modified, or altered except in writing signed by the Parties.
A SSR
6. Nothing in this Agreement should he consumed as an admission or
indication that my timing restriction has began to run or has expired. Nothing in this Agreement
shall be construed as reviving or altering any timing restrictions that expired prior to the date of
Us Agreement. The Parties agree that nothing in this Agreement shall be construol as an
admission of liability, responsibility or fault in connection with the Penobscot River
Contamination. The Parties agree that nothing in this Agreement shall be construed as a waiver
of any claim, defense, argument or position that any Party may have against any other Perry to
the Agreement or other entity with respect to the Penobscot River Contamination, except as
specifically stated in this Agreement.
]. This Agreement may be execmed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
inommem.
S. This Agreement shall be binding upon ami more to the benefit of the
successors and assigns of the Parties hereto.
9. This Agreement shall be effective as of July 1, 2009.
M WITNESS WHEREOF, the Parties sholl cause this Agreement to be executed
by their respective duly authorized representatives.
MALLBiCRRODT LLC Bangor Wastewater Treatment Facility
By: By:
Title:
Title:
Dene:
EXHIBIT 08 258
2005 TOLLING AND STANDSTILL AGREEMENT
PARTY REPRESENTATIVES
Mallmelmodt LLC Patricia H. Duh, Esq..
Mallinckrodt LLC
675 McDonnell Blvd.
Hazelwood, MO 63042
Phone: 314-654-6314
Email: pat.duti@Covidien.wm
With a copy to:
John M. Heyde
Sidley Austin LLP
One 5. Heartburn St.
Chicago, IL 60603
Phone: 312453-7716
Fax: 312-853-7036
Email: ]neyde@sidley.wm
Bangor Wastewater Treatment Facility [Name/Address]
Phone:
Fax
Email:
With a copy to:
[NametAdduus]
Phone:
Fax:
Email