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HomeMy WebLinkAboutCC RES 96-060 RESOLUTION APPROVING A GROUP AGREEMENT RELATIVE TO THE SCHNITZER IRON AND METAL MERLA SITE Meeting Sheet IIIIIIVIIIVIIIVIIIVIIIVIIIIIIIIIII 103323 Box: 26 Folder: RES 1996 Document: CC RES 96-060 RESOLUTION APPROVING A GROUP AGREEMENT RELATIVE TO THE SCHNITZER IRON AND METAL MERLA SITE CITY OF ST. ANTHONY RESOLUTION 96-060 A RESOLUTION APPROVING A GROUP AGREEMENT RELATIVE TO THE SCHNITZER IRON AND METAL MERLA SITE WHEREAS, the City of St. Anthony desires to be included in a cooperative working group with respect to the Schnitzer Iron and Metal Minnesota Environmental Response and Liability Act ("MERLA") Site. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of St. Anthony hereby approves the Schnitzer Iron and Metal MERLA Site Group Agreement on behalf of the City of St. Anthony. • Adopted this day of %y e-M , 1996. ayor ATTEST: City Clerk Reviewed for administration: 6t" ity ger • r r • SCHNITZER IRON AND METAL MERLA SITE GROUP AGREEMENT This Agreement is made as of January 26, 1996, between and among the parties whose authorized representatives have executed this Agreement 1"Members") so as to establish a cooperative working group with respect to the Schnitzer Iron and Metal Minnesota Environmental Response and Liability Act ("MERLA") Site (the "Site") located in Minneapolis and St. Paul, Minnesota. WHEREAS, without admitting any fact, responsibility, fault or liability in connection with the Site, the Members wish to (1) devote their resources efficiently to respond to any claims for investigation, response and/or remediation that may be asserted by duly authorized agencies and/or courts of the State of Minnesota or the United States with jurisdiction in connection with environmental conditions at the Site; (2) allocate among themselves common legal, technical, administrative and other costs incurred in connection with this matter; (3) encourage participation of non-participating parties; and (4) preserve and protect the confidentiality of documents, information and work product received by and developed by the Members. NOW THEREFORE, in consideration of the foregoing, the Members mutually • agree as follows: 1. The Schnitzer Site Group, The Members hereby organize and constitute themselves as the Schnitzer Site Group which may be referred to herein as the "Group". Each party whose authorized representative has executed this Agreement is a Member of the Group. 2. Purpose• 2.1 Activities. It is the purpose of this Agreement that the terms hereof shall control the manner and means by which the Members will: (a) retain common counsel to represent the interests of the Group. (b) retain technical consultants to provide technical support for the Group's efforts; (c) pursue information linking additional parties to the Site as • Responsible Parties ("RP's"); (d) raise and spend all reasonably necessary funds to implement these purposes; and (e) take all necessary and reasonable actions to effectuate this Agreement. (f) Implement any remediation of the Site as agreed upon by the Group. 3. Organization and Procedures. 3.1 Steering Committee. In order to carry out the purposes of this Agreement, the Members do hereby establish the Steering Committee. Each Member, and any individual serving on any committee or subcommittee in behalf of any Member, agrees, by virtue of such service, to maintain the privileged nature and confidentiality of all communications and proceedings of such committees and subcommittees; such obligation shall continue in the event such individual should leave the employ of or cease to represent such Member. • 3.2 Steering Committee Chair. The Steering Committee will elect a Chair by a majority of the Voting Power (as defined in Section 3.7), who will also serve as Chair of the Group. 3.3 Authority to Decide. Except as otherwise provided herein, the Members shall act by and through the Steering Committee. 3.4 Meetings, The Members may authorize or direct actions under this Agreement only at meetings duly held and called for such purpose, which meetings shall be called regularly by the Steering Committee. Meetings of the Group may be called for any purpose at any time by the Chair or by any three or more Members of the Steering Committee or by any five (5) or more Members of the Group. Meetings may be held or attended by telephone conference. 3.5 Decision Making,, Any matter under this Agreement may be referred to a meeting of the Group. The Group shall attempt to make decisions by consensus; however, except as otherwise provided herein, on any matter put to a vote, such matter shall • -2- • be decided by a majority (more than 50%) of the Voting Power (as defined in Section 3.7 of this Agreement) of the Members present in person or by proxy at the meeting. 3.6 Notice of Meetings. Written.notice of the time, place and purpose of any meeting of the Group shall be given to each Member at least five (5) days and not more than thirty (30) days before the date of such meeting either personally or by mail or by other means of written communication, charges prepaid, addressed to each Member at the address appearing on the service list maintained by the Steering Committee. If a meeting is called on less than five (5) days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every Member. No assessment may be made at a meeting at which less than five (5) days notice has been given. 3.7 Voting Power. At any Group meeting, each Member shall have a vote in the proportion that the amount of financial contribution assessed, due and paid by such Member as of the last assessment made pursuant to this Agreement prior to such meeting bears to the total amount of financial contribution assessed and paid by all Members under this Agreement as of • such assessment; provided that any Member which has been assessed a financial contribution which assessment remains unpaid at the time the meeting is called may vote only upon payment of the full assessment prior to the voting process. 3.8 Voting by Proxy. A Member eligible to vote at a Group meeting may assign in writing, using the form attached to this Agreement, its Voting Power to another Member eligible to vote at the meeting. If the Assigning Member instructs the other Member how to vote the assigned Voting Power, the other Member will faithfully follow such instructions. 3.9 Quorum. Fifty percent (50%) of the eligible Voting Power shall be present in person or represented by proxy at any Group meeting. 3.10 Right of Separate Counsel. Notwithstanding any common legal advice and services in respect to any matter, each Member reserves the right to select and retain its own counsel to represent such Member on any matter and shall advise common counsel and the Steering Committee if such Member is not to • -3- be represented by or through common counsel with respect to • any such matter. 4. Steering Committee , 4.1 Members. Membership on the Steering Committee shall be open to any Member who expresses a willingness to make its representative reasonably available to participate actively in the functions of the Steering Committee. The Chair will maintain a current list of members of the Committee. If a Member wishes to be a Member of the Steering Committee, it shall notify the Group in writing and membership shall be effective upon receipt of such notification. A Member may withdraw from membership in the Steering Committee at any time by written notice to the Group. 4.2 Enumerated Powers. The powers, duties and responsibilities of the Steering committee shall include: (a) selecting, retaining, and determining the activities of any technical consultant, common legal counsel, and investigator retained for assistance in the matter; • (b) appointing a Technical Subcommittee or other subcommittee to handle specific matters; (c) communicating with the Minnesota Pollution Control Agency (" MPCA") and other agencies and persons with respect to all matters arising out of the Site; (d) collecting and disseminating information and documents from and among the Members, its consultants and its common counsel; (e) establishing and maintaining on behalf of the Group a trust or escrow account, pursuant to Section 5.5, and providing the Members with a periodic accounting of those funds pursuant to Section 5.3 of this Agreement; (f) recommending to the Group a method of allocating Shared Costs, as defined in Section 4.3; and (g) conducting such other activities as are necessary and proper to carry out the purpose of this Agreement. • -4- 4.3 Shared Costs. Those activities authorized by the Steering • Committee or the Group to be incurred on behalf of the Group shall be funded by the Members as Shared Costs, as set out in Section 5. 4.4 Votina, The Steering Committee shall attempt to make decisions by consensus; however, on any matter put to a vote, such matter shall be decided by a majority of the Voting Power of the Steering Committee Members present in person or by proxy at the meeting. 4.5 Reports to the Group and Call for Group Meetings The Steering Committee shall report in writing its decisions, actions, and recommendations to the Group from time to time as may be necessary to keep the Group fully informed of matters covered by this Agreement, and shall call meetings of the Group when needed to refer to such meetings any matters which, in the judgment of the Steering Committee, should be referred. 4.6 Quorum. Fifty percent (50%) of the eligible Voting Power of the Steering Committee shall be present in person or represented by proxy at any Steering Committee meeting. • 4.7 Compensation. The Members of the Steering Committee shall serve as volunteers without compensation from the Group. 4.8 Call for. and Notice of Meetings The Steering Committee may authorize or direct actions under this Agreement only at meetings duly held and called for such purpose, which meetings shall be called regularly by the Steering Committee. Meetings of the Steering Committee may be called by the Chair or by any two (2) Members of the Committee. Whenever feasible, written notice of the time, place and purpose of any meeting of the Steering Committee shall be given to each Member at least five (5) days before the date of such meeting either personally, by telephone, by fax, or by other means of written communication charges prepaid, addressed to each such Member at the address appearing on a service list to be maintained by the Steering Committee. If a meeting is called on less than five (5) days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every Member. Meetings may be held by telephone conference. • -5- 5. Shared costs. 5.1 Payments. Assessments for- Shared Costs shall be approved by the Group. All assessments shall be due and payable within forty-five (45) days of receipt of demand therefor from the Group. Such payments shall not constitute admission of or be evidence of any liability regarding the Site. All payments made shall be credited towards the Member's final allocated cost or settlement. 5.2 Future Contributions. Contributions for Shared Costs may be assessed by the Group as needed to carry out the purposes of this Agreement. Future contributions shall be assessed in accordance with such fund-raising mechanisms as are approved by the Group. Any assessment not expended by the Group after complete and final satisfaction of any and all obligations of the Group shall be distributed to the Members in proportion to the assessment paid by each Member. 5.3 Accounting for Funds. The Steering Committee shall keep an accounting of all funds received by or on behalf of the Members and shall provide to the Members quarterly and annually, informal accountings of monies received, spent and obligated, and a final accounting upon the termination of this'Agreement. Such accountings need not be prepared, audited or certified by a certified public accountant; but any Member may, at that Member's expense, request an independent audit of such accountings. 5.4 Purpose of Funds. All monies provided by Members pursuant to this Agreement shall be used solely for the purposes of this Agreement and shall not be considered as payment for any fines, penalties or monetary sanction. 5.5 Trust or Escrow Account. All payments shall be placed into an interest-bearing trust or escrow account by the Steering Committee. 6. Withdrawal and Removal 6.1 ' Withdrawal. Any Member may withdraw from all participation in this Agreement upon written notice as of the date the notice is postmarked, except that such Member shall remain liable for any assessment of which is had written notice more than forty five (45) days prior to the date of withdrawal, provided, however, that a Member upon execution of this Agreement may notify the Group in writing of a maximum Participation Amount. If any assessment results in the total of all assessments to such Member exceeding that Member's Participation Amount, such Member shall be deemed to have withdrawn from participation in this Agreement on the date of such assessment unless the Member confirms, in writing and within forty five (45) days after notice of such assessment and each subsequent assessment, that the Member wishes to remain a Member and continue to participate in this Agreement. After the initial designation of a Participation Amount, a Member may at any time raise the level of its Participation Amount by written notice to the Group. Any member which withdraws from participation in this Agreement shall be subject to the terms and conditions applicable to withdrawing or removed members, including, but not limited to, Sections 8 and 13 hereof. Any Member entering into any settlement with the United States or the State of Minnesota not approved by the Group relating to the Site shall be deemed to have withdrawn from participation in this • Agreement effective upon date of settlement. Any member that so withdraws may re-enter as a new Member pursuant to Paragraph 7, upon payment of prior unpaid assessments, with full credit for previous contributions. 6.2 The Group will take no action for damages against a Member that withdraws because that Member withdraws as set out herein. A withdrawn Member may enter into another group with purposes similar to this Group. After withdrawing as set out above, a Member will have no obligation or liability for costs associated with or arising from the Site other than what it would have had if it had not ever been a Member. 6.3 Removal of a Member. If any Member's interests or actions are reasonably alleged to be contrary to the interests of the other Members, such Member may be removed from this Agreement by a vote of three-fourths of the Voting Power of the Group present in person or by proxy at a Group meeting called for the purpose of considering such removal. If any Member fails to pay any portion of any assessed financial contribution pursuant to this Agreement within sixty (60) days following receipt of • notice of such assessment, that Member shall be considered in default and may be removed from this Agreement by a vote of two-thirds of the Voting Power present in person or by proxy at a Steering Committee meeting called for the purpose of considering such removal. Any removed member shall remain liable for any assessment of which it had written notice more than thirty (30) days prior to the date of removal, and shall be subject to the terms and conditions applicable to withdrawing or.removed members, including, but not limited to, Sections 8 and 13 hereof. 7. New Members. Any entity that becomes a Member by execution of this Agreement subsequent to the effective date of this Agreement shall be deemed a Member ab initio and shall be assessed and pay all sums which such Member would have been obligated to pay if a Member ab initio, provided that the Steering Committee may impose other or additional conditions of membership for new Members. 8. Confidentiality and Use of Information 8.1 Shared Information. From time to time, the Members may elect • to disclose or transmit to each other, such information as a Member, the technical consultant, common counsel or private investigator deems appropriate for the sole and limited purpose of providing information, advice, thoughts or impressions relating to the Site, or coordinating such activities as may be necessary and proper to carry out the purposes of this Agreement ("Shared Information"). Shared Information may be disclosed to or transferred among the Members orally or in writing or by any other appropriate means of communications. 8.2 Preservation of Privilege. Disclosure of Shared Information between or among Members, common legal counsel or technical advisors shall not be deemed a waiver of the attorney- client privilege or work product immunity or any other privilege. 8.3 Confidentiality of Shared Information (a) Each Member agrees that all Shared Information received from any other Member, or counsel, technical consultant or investigator retained by the Group pursuant to this Agreement shall be held in strict confidence by the • -8- • receiving Member and by all persons to whom such Shared Information is revealed by the receiving Member, pursuant to this Agreement, and that such information shall be used only in connection with conducting such activities that are necessary and proper to carry out the purposes of this Agreement; (b) Each Member shall take all necessary and appropriate measures to ensure that any person who is granted access to any Shared Information or who participates in work on common projects or who otherwise assists any counsel, technical consultant, or private investigator in connection with this Agreement, is familiar with the terms of this Agreement and agrees to comply with such terms as they relate to the duties of such person; (c) The Members intend by this Section to include in the definition of Shared Information all information and documents shared among any Members or between any Member and technical consultant or private investigator retained by the Group to the greatest extent permitted by law regardless of whether the sharing occurred before execution of this Agreement and regardless of whether or • not the information is shared orally or in writing, or whether a writing or document is marked "Confidential"; (d) The confidentiality obligations of the Members under this Section shall remain in full force and effect, without regard to whether a Member withdraws or is removed, whether this Agreement is terminated or whether any action arising out of the Site is terminated by final judgment or settlement. The provisions of this Section shall not apply to information which is now or hereafter becomes public knowledge without violation of this Agreement, or which is sought and obtained from a Member pursuant to applicable discovery procedures and not otherwise protected from disclosure; (e) If a Member withdraws or is removed from the Group the withdrawing or removed Member and the remaining Members shall remain obligated to preserve the confidentiality of all Shared Information. If this Agreement is terminated, the Members shall return documents or physical materials to the Member who • originally provided the Shared Information and all Members shall remain obligated to preserve the confidentiality of all Shared Information received or disclosed pursuant to this Agreement. (f) Nothing herein shall limit a Member's right to communicate Shared Information with the Member's insurance carrier(s) to the extent necessary to preserve any claim the Member may have under any policy, provided that such communication is made with not less than the same degree of care taken by the Member when communicating its own confidential information to such insurance carrier(s). (g) Each Member acknowledges that public entities who are Members may be required by law to disclose certain Shared Information to the public if requested, and such disclosure by the public entity shall not constitute a violation of the confidentiality provisions of this Agreement. Such public entity Members will use their best effort to (1) keep Shared Information confidential to the extent • permitted by law; and (2) Inform the Chair of any request for Shared Information promptly after such request is made, and not oppose any steps the Group may take to prevent disclosure through court order or other applicable process. 9. Denial of Liability This Agreement shall not constitute, be interpreted, construed or used as evidence of any admission of liability, law, or fact, nor a waiver of any right or defense, nor an estoppel against any Member by Members as among themselves or by any other person not a Member. However, nothing in this Section is intended or should be construed to limit, bar, or otherwise impede the enforcement of any term or condition of the Agreement against any party to this Agreement. 10. Insurance. -10- • The Members do not intend hereby to make any agreement that will prejudice any Member with respect to its insurers and, by entering into this Agreement, anticipate that the actions taken pursuant to this Agreement will benefit such insurers. If any insurer makes any claims that any aspect of this Agreement provides a basis for rejection or limitation of coverage of a Member, the Group will attempt, consistent with the objectives of this Agreement, to return any Member subject to such claim to a position that is satisfactory to such insurers. 11 . Successors and Assigns This Agreement shall be binding upon the successors and assigns of the Members. No assignment or delegation of the obligation to make any payment or reimbursement hereunder will release the assigning member without the prior written consent of the Steering Committee. 12. Relationship of Members. No Member, or representative or counsel for any Member, has acted as counsel for any other Member with respect to such Member entering into this Agreement, except as expressly engaged by such Member with respect to this Agreement, and each Member represents that it has sought and obtained any appropriate legal advice it deems • necessary prior to entering into this Agreement. No Member or its representative serving on any Committee or Subcommittee shall act or be deemed to act as legal counsel or a representative of any other Member, unless expressly retained by such Member for such purpose, and, except for such express retention, no attorney/client relationship is intended to be created between representatives on any Committee or Subcommittee and the Members. Nothing herein shall be deemed to create a partnership or joint venture and/or principal and agent relationship between or among the Members. 13. Indemnification No Member or its representative(s) serving on any Committee or Subcommittee shall be liable to any Member for any claim, demand, liability, cost, expense, legal fee, penalty, loss or judgment incurred or arising as a result of any acts or omissions taken or made pursuant to the provisions of this Agreement. • -11- • The terms of this Section shall survive the termination of the Agreement and the withdrawal or removal of any Member. 14. Claims Against Others. 14.1 Agreement Not To Assert Certain Claims Each Member hereby agrees not to assert against any other Member any Claim (whether denominated a cross-claim, third party claim or otherwise) relating to any and all liability arising out of or connected to the Site or litigation or negotiations concerning the Site for the period during which the entity bringing such Claim is a Member. Further, each Member agrees that the Statute of Limitations and the Statute of Repose as to any such Claim are tolled for the period during which the entity bringing such a Claim is a Member. Any Member who has withdrawn or is removed from this Agreement is no longer subject to this moratorium on claims and the tolling of the Statute of Limitations or Statute of Repose. (a) Notwithstanding the provisions of this Section, any Member may assert in a court of law or in such other forum as it sees fit any claim, lawsuit or cause of action, whether contingent or matured, which it may have against another Member who 1) dissolves, publishes a notice of dissolution, or files articles of dissolution with the appropriate governmental entity, or 2) files or has filed against it a petition in bankruptcy or similar proceeding. Any such assertion of claims shall not affect the agreements in this Section among the other Members. (b) Notwithstanding the provisions of this Section, any Member may assert against any other Member any contingent or matured claim arising out of a contractual relationship pertaining to any materials present at the Site at any time, the presence of which creates for either Member the status of responsible party with respect to the Site. 14.2 lights Against Third Parties. Nothing contained in this Agreement shall affect any right, claim, interest or cause of action relating to the Site of any Member hereto with respect to persons not Members, including without limitation, claims for contribution and indemnity against persons not Members. Also, • -12- • nothing contained herein shall prevent any Member from asserting a claim or defense against the State of Minnesota or the United States. Further, any Member who asserts a claim relating to the Site against a non-Member agrees to notify the other Members of the Group of its action. The Steering Committee may assert claims against third parties on behalf of the Group or its Members, but only after giving notice to the members and giving the Members opportunity to opt out of such assertion of claims. Opting out of such assertion shall not be considered withdrawal from the Group. 15. Waiver of Conflict of Interest 15.1 Legal Counsel. If the Group selects and retains legal counsel to perform legal representation services that are of common benefit to the Group, each Member agrees (1) that it will not claim or assert that, based solely on counsel's past or present representation of a Member, said counsel has a conflict of interest in performing legal services authorized by the Group and arising out of the Site unless the Member notifies the Steering Committee of the conflict within twenty (20) days of receiving notice of intent to hire legal counsel; (2) that it will not claim or assert that, based solely on said counsel's • representation of the Group under the terms of this Agreement, said counsel has a conflict of interest in connection with any representation of any other person or entity in a matter pending as of the date hereof unless the Member notifies the Steering Committee of the conflict within twenty (20) days of receiving notice of intent to hire legal counsel; (3) that it will not claim or assert that, based solely on said counsel's representation of the Group under the terms of this Agreement, said counsel has a conflict of interest in any future representation of any person or entity unless the subject matter relating to said representation arises out of or is connected to the Site or involves or could involve any facts or information regarding the site obtained from the Member during the term of this Agreement; (4) that if any conflict develops in the performance of work authorized by the Group and the Member, it will give notice to the Group and will raise no objection to the continued representation of the Group by common counsel provided that common counsel notifies affected parties that it is not representing the particular member with regard to the matter in issue, and (5) that if a Member withdraws or is removed from this Agreement or its representation by common counsel is in any way terminated, it • -13- • will raise no objection to the continued representation by common counsel of all or any of the other Members in connection with any legal services arising out of the Site. 16. Consultants. ' Service rendered to the Group by a consultant shall not be grounds for disqualifying the consultant in any matter relating to the Site or in any subsequent litigation, claim or action unrelated to the Site. Any consultant employed by the Group in any matter in relation to the Site cannot be employed by any individual Member in the same or other matters arising out of the Site in which any other Member is adverse, nor can such consultant be employed by a Member in the capacity of an expert witness in any other proceeding arising out of the Site, in which any other Member is adverse. However, if the Group does not agree to undertake certain response actions, any individual Member may engage a consultant previously engaged by the Group for purposes of implementing such response actions. The Members agree that each Member will not claim or assert during the term of this Agreement that any consultant employed by the Group as a whole has a conflict of interest in representing the Group as a whole on the grounds that certain Member interests are inconsistent or that the consultant has been privy to confidential information. Nothing in this Section shall preclude the Group from voting to reimburse any Member for consultant fees it has incurred on behalf of the Group. A consultant whose fees have been reimbursed in this manner shall not be precluded from continuing or resuming work on behalf of any individual Member unless the reimbursement resolution so provides. 17. Effective Date. Method of Execution The effective date of this Agreement shall be the date first stated above. This Agreement shall be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. 18. Amendments. This Agreement may be amended only by a vote of at least two-thirds of the Voting Power of the members present in person or by proxy at a Group meeting called for the purpose of considering such amendment. Such amendment shall become effective thirty (30) days after written notice of the adoption of such amendment is mailed to • -14- • all Members. However, Sections 13 and 18 hereof cannot be amended to limit the effect of Section 13 hereof with respect to acts or omissions taken or made prior to such amendment. 19. Separability If any provision of this Agreement is deemed invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. 20. Nonwaiver. Except for those sections which, by their terms, waive some right, such as Sections 13, 14 and 15, nothing in this Agreement shall be construed to waive any rights, claims or privileges which any Member shall have against any other Member or any other person or entity. 21. Entire Agreement. This Agreement constitutes the entire understanding of the Members with respect to its subject matter. 22. Choice of Law. • This Agreement shall be governed and construed under the laws of the State of Minnesota without giving effect to any conflict of laws principles or statutes that may result in the application of any other law. 23. Termination. This Agreement may be terminated by a vote of two-thirds of the Voting Power. 24. Notice Where written notice is required or permitted hereunder, it shall be deemed sufficiently given to, and received by, a party upon any of the following: A. Personally given to a person attending a Group or Steering Committee meeting on behalf of the party; B. For meeting notices only, sent by facsimile to the Designated Representative as set out in the attachment hereto, which the • -15- Member may amend from time to time by notice to the Steering • Committee Chair; C. Sent by registered U.S. mail, return receipt requested, or by courier or express mail carrier with evidence of receipt, to the Designated Representative at the address set out in the attachment hereto, which the Member may amend from time to time by notice to the Steering Committee Chair. IN WITNESS WHEREOF, the Members hereto, which may be by and through their appointed counsel, enter into this Agreement. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the company or entity on whose behalf it is indicated that the person is signing. • Member: ��Iuwob— Signature , Date: d�1 U l 30, By: Bobbie Mc Gee Gregg - Vice President - Law (Name and Title) -16- • Designated Representative for Receipt of Notice and Invoices: NAME: ADDRESS: - TELEPHONE NUMBER: FACSIMILE NUMBER: • • -17-