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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 0 R D RR Ilml and vdst111 Agtement - Melinaltod. M�e�b NustlW ����Iu/ t 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