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HomeMy WebLinkAbout2008-09-08 08-294 ORDERCOUNCIL AMON Ud 294 Item No, Date: September 8, 2008 ]tem/Subject ORDER, Authoring the City Manager to Execute the West Site/Hows Comer Superfund Tolling Agreement and Plymouth Site Tolling Escrow Memorandum Responsible Deparb M: Legal The City of Bangor u a potentially Responsible Parry (PRP) for a suWrfund site in Plymouth, Maine and has been part of the Joint Defense Group that has been negotiating with the EPA and Maine DEP since 1898. The EPA and DEP have a claim for $1,000,000 In Past costs. In 2007, the City and other PRFs executed a Tolling Agreement extending the time by which the EPA and DEP might bring suit to attempt to collect those costs. The EPA is now requesting, and the PRP Group Executive Committee recommends, execution of another Tolling Agreement edending the statute of limitations for bringing a suit to June 30, 2009. It Is in the City's and other PRFs best interest to avoid the EPA formally filing suit as continuing negotiations give the Joint Defense Group the opportunity W continue m have Input in the final settlement. The Tolling Agreement will only be accepted by EPA if at least 36 PRFs representing 37,000 Sollars of waste participate. The PRP group has, therefore, drafted an escrow agreement W allow the PRP group W retain each PRFs signature page until this threshold has been met. If R Is not met, the signature pages will be returned and no PRP will toll the sbhte of limitations. This ensures that the oversight casts are shared by a substarldal group of PRK This Order will authorize the execution of both documents. Department Head This has been reviewed and Is recommended by the Finance Committee. %Li//en_ / LY _. f/ City Manager France Director Solidtor Introduced for _Y Passage _ Firth Reading Referral Assigned ro Councilor palmi aepte er 8, 2008 CITY OF BANGOR (TREE.) ORDER Authorizing the City Manager to Execute the West Ste/Homs Corner Superfund Tolling Agreement and Plymouth Site Tolling Escrow Memorandum Sy the oty cwmt of the Cty ofRengo,: ORDERED, That the City Manager Is hereby authorized, on behalf of the City of Bangor, to execute a West Site/Howl Caner Superfund Site Tolling Agreement with the United States Environmental Proteddon Agency and the Plymouth Site Tolling Escrow Agreement in relation to the Lbws Comer, Plymouth superfund site negotiations. These documents shall be in a form substantially as attached hereto and in a final form as approved by the City Solicitor or Assistant City SOIKItor. I9 CITY Cowen Septeutie= 8, 2008 Passed �CIIY # 11A-906 RI'ILSI e_.a...z.. .e. rn m Execute the West Sitef9 Comer oupe=Ewd A pl,zm.th A mellisg eecg/We.a=aaa� am�td ro.co�enMuQw�P� � S III I. � I I I S WMI SITELDO WS CORNER SUPERFLIND LINO AgREafta - This Tolling Agreement is added into on this 12th day of August, 2008 between the United Stmea of America ("United States') on behalf of the United Steles Erwhopm anal Protection Agency CEPA"), and the Suee of Maine C'Maine') on behalf of the Maine Department of Environmental Production ("DEn, and the potemiedly responsible party that has signed this agreement ("Cooperating Party'). WHEREAS, EPA and DEP anduded response activities and thereby incurred response costs related 10 the release or direst of release of hazardous substmoas at the West SitelHows Cmnm Supatund Site ("Site"), located at Plymouth, Maim. WHEREAS, the United States addends that it has claims; against Cooperating Perry purswas to Sections 107 and 113 of the Comprebevdve EvviromnenW Response, Compensation, and UBKUY Act C'CERCLA'), as amended 42 U.S.C. §§ 96('1 and 9613 for the recovery ofrnpmise asti and for mount resource damages ("To0ed Claims'). WHEREAS, Maine contends that it bas claims against Cooperating Parry Pursuant w Sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Uahitity Ad C'CERCLA'), as amendnd, 42 U.S.C. §§ 960 and %13, 38 MRSA § 1367 and OUT Sesta laws for the recovery Ofresponsa ends mal for natural reaurce damages ('"Tollod Claims"). - WHEREAS, the United Stores, Allain¢, and Cooperating Party enter into this Tolling Agreement to facilitate sentiment negdutioms betwean the Parties within the time period Provided by this Agreement without Unity altering the claims or defenses available to any party hereto, except as specifically Provided been. NOW, THEREFORE, the parties hereto, in consideration of the eovennnts ad out hard , afire as follows: I. The period commencing on September 30, 2008 will ending on Ane 30,2009 inclusive (the "Tolling Period'), shall not be included in computing the running of my statute of Iimimtions Wain allY applicable w my intim brought by the Usual States or Maim on the muco Claims. - - 2. Any defenses of laches, estoppel, or waiver, or other Nationals defenses based upon flan morning or estimation of any time period shag not include the Talking Period for the Tallest Claims. 3. Cooperating Party shall not stow, plead, or sure annual the United Stales or Maine in any fashion, whether by wervven motion or otherwise, my affirmative defense, including, but not limited to, laches, estappel, waiver or other equitable defense based on the running of my dadde Oflimitdions or the passage of time during the Tolling Period in any action brought on Om Tolled Claims. - 4. This Tolling Agreement does not constitute an admission m ackmwhedgment of my fwd, conclusion of law, or liability by any party to this Tolling Agreement, Not does this Tolling Agreement contribute an admission or acknowledgment on the pard of the United Stites 08 294 br Mame met any mmme Of limitations. or defense couceming the timeliness of commencing a civil action, is applicable W rhe TollNClaims. The Vmled Surma and Mauve rcamve the rightfo eased thatncstatuteoflimitnommenciga my ofthe Tolled Claims andthathi othetdefere bused upon the timeliness of commencing a civil action is applicable. Cing Agi a ens,Party0 serves allrightsoanddefenseswhichdmryhave,exceptaeset toedinthis Tolling A®eetatea to contest or defvd ant claim or action the United States or Menne may asset[ or. initiate age" the CaaPmating Party. S. Tads Tolling Agreement my" be modified except is a writing signed by all the Parties. This Tolling Agr¢ tmybeoxtmdedforsuchp iadoftimeastMPanies agsaw in writing. 6. This Toiling Agreemeat does not limit in any way the nature or scope army claims that could he brought by me VNted Slates orM thoom a complaintogra se Caopnafiug Party. Parties. 7. This Tolling Agreemcat is not intended W affect any claims by of against mad S. C Pcarfing Party shall Preserve and maintain, during the Pandenry ofthe Tolling Period, and fur amwmum Mone year oder termination of din Tolling Period, at least one legible copy of all documents and other mmerials subject to discovery ander t e Federal Rules of Civil Procedure and rel noting m the Toiled Claims, regardleu of any corporate or document retortion PolicY to me contrary or potenfial clean of privilege regarding any docmnent 9. Thu Tolling Agaemeng coname the create Unicameral between the Pardes,and an sstemevS promise, or inducement made by any Party m this Tolling Agreement that is rot set form in this Tolling Agrcmned And be valid or binding, swr said it be used in constraint the toms of this Tolling Agmemem as set forts herein 10. Tice midersigned representative ofeach Mthe parties certifies that he or she is fidty aadawi a to enter mm the lines and conditions of man Tolling Agreement and to legally, bindng ndeOnieewsmW acting an a MrhisdwvmmL.TNs To llingAmentalrtstrollha binding upon the United Stage,ehalffbehalfe De United Of EovimwtalPlmrica,n Agency, the Stam Of Maine en babaVofthe MaireD ymmuem of EnvironeenWl Pmtatio4 and upon Cooperating party and its succzsors. 11. This Tolling Agreement is efkctivespan execution by the Parties, and without the requirement of filing caul she C.Omt, and may he signed to ooedema s. 08 298 For the United Shtes on behalf of the For U.S. Environmental Protection Agency: CoopereUng Petty DatNNis_dayaf ,2008 Sigpaum RONALD G. GLUM Assistant Section Chief Name Enron menml &Sorcement Section Emlromvent and Natural Resoev= - Division TiU< U.S. Depmtmmt of Janice Cooperetmg Petry. DatM tbis_daY o£ 2008 MADSA.GALucssDt Senior AUomey Eovvomnental Enforcement Section Eovimnment and Natural Resources Division U.S. Department offus0ce P.O. Sax 7611 Washinemo, DC 200447611 FORTRESrAT60FMAME: Dated this_ day of 20M Many M. Sauer Aalslbnt Attorney Genual Office of the Auomey Genal State of Maine 6 State House Smtion Augusta, ME 04333 3 Datta Us_dayof 2005 08 294 Plymouth Site Tolling Agreement Escrow Memoranda This ESCROW MEMORANDUM (the "Escrow Agrxme d`� is made as of this 12th day ofAugust, 2008 by and among the parries who sign this Escrow Agreement (individually, m it a "Parry ' collectively, the "Parries") and Pierce Atwood LLP, a law Jim having a place of business at One Monument Square, Portland, Maine (the "Escrow Ageat"). WHEREAS, the Parlim intend an he signatories to aU.S. Enviromnental Protection Agency ("EPA') Toiling Agremnmt, In the Matter of West Snev'Rows Corner Superposed Site (die'Tolling Agement"), with respect to Ne West Site at Bows Comer Suprfest Site (the "Site") located in Plymouth, Maine and ate signamries to this Escrow Agreement. NOW, THEREFORE, for good mW valuable consideration, the delivery and oweipt of which is hereby ackrmwledged, the parties =it the Escrow Agent hereby agree as follows: 1. Appointment of Escrow Agent and Delivery of Signature Pages to the Escrow Agent. The Paries hereby appoint Pierce Arwood LLP to act as the Escrow Agent order the tons and provisions of this Escrow Agreement and the Escrow Agent hereby accepts such appointment Each Party shall deliver to the Escrow Agent by August 27,2008 an exmuted original signature page of this Escrow Agreement and an executed original sigramm page to the Tolling Agcemmt. 2. Distribution of Signature Pages and Copies Thereof. After the Escrow Agent receives execution pages of this Ere row Agnomen and the Toiling Agcemmt from at least thirty-six (36) Parties representing an allocated volume of at Imo 31,0008ailons, Ne Escrow Agent shall (a) provide the original of the signed Party's signature page for the Tolling Agement to EPA, and (b) provide copies of the signature pages for the Tolfug Agreement and this Escrow Agreement to the Party upon request. If the enMitions in the preceding sentence are not entitled by August 21, 2008, the Escrow Agent shall rmum the signaWre pages to the Escrow Agement and rolling Agreement to curb Party that delivered signature pages to the Escrow Agent in accordance with this Agreement. 3. Deliveries. Any docaments, notices, demands and requests given or requird to b<given hereondr shall be in writing, shall be sent to the address for notice listed banner for such individual or entity, and shell be given by hand, by overnight wort", or shall be mailed by first claw OR 294 registered or certifiedmail, postage prepaid, return receipt requested, and shall he given as follows: To the PRP Group Executive Commitee: Plymouth PRP Group do Joanna Tournngeeu, Esq, Pince Atwood LLP One Monument Square Portland; ME 04101 To the Parties at the addresses set forth in the Pamos'respwhve sipmmre Pages To the EPA: Gretchen Mmund, Esq. U.S. Environmental Protection Agency One Congress Street Boston, MA 021142023 To the U.S.: Apomey Assigned to West Site/Hows Cama, Plymouth, Maine CERCLA Site Environmental Defense Section, U.S. Dept. of Justice 601 D. Strut, N.W., Room 8140 Washington, D.C. 20004 To the Escrow Agent Piave Atwood LLP One Monument Square Portland, ME 04101 Apt: Joanna Touroneeau.&a. 4. Disputes. (a) Any dispute which may mine under this Escrow Agreement shall be settled either by mutual agreement of the patties to such dispute or by a final order of corn of prom jurisdiction. (b) In the event of my dispute under this Escrow Agreement. the Escrow Agent may,W shall have no duty to, institute an im erpleader proceeding in a mud of proper jurisdiction to determine Me rights of the parties. TheEscrow Aacetshall notberequird todefend any legal prowalings which maybe instituted against it with respect to this Es smw Agreement unless O8 294 requested to do win writing by any of the parties heem, and unless and will it is indemnified by the rerpowinglearty to the =ankle satisfaction of the Escrow Agent against the cost and expense of such defense, including without limitation the reasonable fees and expenses of its legal counsel. Should a interyleader proceeding be instituted, or should the Escrow Agent became involved in litigation in my manner whatsoever on account of this Escrow Agreement or my fends paid to the Escraw Agent by the Parties, the other patties beeto shall pay the Escrow Agent, in addition to any charge made hereunder for acting as the Escrow Agent, reasonable attomeys' fres incurrN by the Escrow Agent, and any other disbursements, expenses, losses, costs and damages actually and reasonably insured in wmection with and resulting from such litigation, S. Responsibilities of Escrow Agent (a) Other than the exercise of reasonable care in the custody of documents delivered or any funds paid to the Escrow Agent by fire Patties, the Escrow Agem.shall have no responsibilities, obligations or duties with respect m such documents or funds except as wponifically set forth harem, and there shall be no implied duties. In the event of any disputcor question concerning the Agent's rights or duties hereunder, the Escrow Agent shall be entitled to advice of counsel concerning its duties herwnder and may pay reasonable wmpemation to all such attorneys, agars, revivers, employees and transit as may be reasonably employed and the cast of such compensations shall Ie home by the Parties hereto jointly and severally. (b) The Escrow Agent shall run by meson ofirs execution of this Escrow Agreement, assume any responsibility in liability for any transactions between the other parties hereto, other than the perfomance of its obligations, ns Escrow Agent, with respect to the documents or fiends held by it in accordance with this Escrow Agreement, and it is agreed Naz its duties are purely ministerial in name and that the Eacrow Agent shall incur no liability whatsmver to the other paniwhrtcmdm except for willful misconduct ormgiigmce. The Escrow Agentshallbe authorized to net upon my document quest or notion believed by it to good With to be lmaine executed by a duly mtlmdzed representative of my party hereto, nod shall he fully protected in enacting The Escrow Agent wall not bebound by my modification, amendment, lamination, cumulation or rescission of this Escrow Agreementmilesa the same shall be in writing and signed by all of the other parties berem and, if its duties as Escrow Agent herconder are Wetted thereby, unless it shall have given Inner written consent thereto. 6. indemnification and First Lien The Probes jointly and severally, agree to indemnify, defend and hold the Escrow Agent and its p mxvrrs, employees and agents (each an "Indemnitee') homeless from caul against any end all liabilities, obligations, losses, dmmges, penalties, actions, tames of action, judgments, suits, claims, casts, expenses and disbursements of any kith or nature whatsoever (including, without limim6on, the reasonable fees and disbursements of wmsel) in connection with any investigetim, administrative or -judicial proceeding, which may be imposed on, incurred or rumored against any mesh hdermitee in my mama relating to or miaing out of the notions or in sorions of the Escrow Agent with remain this Nam Agreement or the performance of its duties hareunder, except those caused by Escrow Agar's own negligence or misconduct. The nR 2qq Escrow Agent shall have a first lion on any funds paid to the Escrow Agent by the Parties to pay f any and all fees, costs, expenses and indemnification for which the Escrow Agent is entitled be hereunder. 7. Resignefioq Removal, and Successor The Escrow Agent in its salediscretion mayresign at anytime and be discharged of its duties hereunder by giving fifteen (15) days prior written names w the parties hereto (such notice b specify the date of such resignation). Escrow Agreement may be removal at any time by delivery in writingofm instrument signed by all the Parties, to the evenuhepmiss fail to appoint a successor escrow agent and notify the Escrow Agent in writing of such appointment within such fifieen-day period, the Escrow Agent shall be deemed to be solely a custodian of the Escrow Account without further duties hereunder except to deposit any funds received into its Attorney Trost Pond Account, and shall be entitled to petition a court ofmmp sumajumsdiction m appoint asrmeasor. eseow agent Upon the appoiahnentofe euemsmr escrow ¢gent by the parties hereunder or by such aware, the Escrow Agent shall commit any funds paid or documents delivered to the Escrow Agent by the Pasties Osm any and all fors, costs, aspen s and madminification for which the Escrow Agent is emitted to hemmker) to the new narrow agent as well as all camera and documents relating thereto, whereupon the Escrow Agent's duties and liabilities under this Agreement shall terminate. S. Binding Effect; Successors and Assigns. This Escrow Agreement shall be binding own, and insure to the benefit of, the respective parties hams and their casements and assigns, and shall be construed and enhanced! according to the laws of Maine, 9. Counterpand; Authority This Escrow Agreement may be executed in separate munterymts, each of which shall be deemed an original,burall of which together shall constitute one and theiame lnshmnent. Each party to this Escrow Agreement represents to the other parties that the signatory to this document bar each party has full authority to ascente this document on its behalf and a thereby bind that party 10. Modificaues, Termination Has Agreeunent may be modified only in a writing signed by all Parties. This Agreement shall terminate upon perfomanas by Escrow Agent of its duties hereunder, except for the provisions of section fi which shall survive. IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be ==led m an agreement under seal as of the day and you first written above mm Pierce Atwood LLP, ESCROW AGENT By: (Signature) Joanna Tourangear, Eq. (Nome of Party) By: Dam: (Signaturt) ADDRESS FOR NOTICE (PrinW Name) wm".o