Loading...
HomeMy WebLinkAbout5564 ��� �� TOLLIlVG AGREEMENT This TOLLIN(�AGREEMEIUT ("Agreement"), effective as of Apri1�C 2016, is made and entered into by and between C1TY OF BREMERTON,a Washington municipal corporadon (the "City��, and CASCADE NATCIRAL QAS CORPORATION, a Washington corporation ("Cascade"). Recitals A. WHEREAS, the parties assert they may have claims against one another ("Claims'�for environmental contamination at and around the location of a fonaner manufactured gas plant ("MGP'� once operated on real property and beach&ont on the south shore of Port Washington Narrows between Thompson Drive and Pennsylvania Avenue in Bremerton, Washington (the"MGP Site"). The MGP Site is listed on the National Priorities List (NPL) maintained by the United States Env�onmeatal Protecrion Agency (EPA) under EPA identification WAN001002907. B. WHEREAS,absent this Agreement,the parties could commence litigarion against one another to pmsecute the Claims. C. WHEREAS,the parties wish to avoid the expense and burdea of litigation at this time and allow an oppartunity for the parties to attempt to resolve the Claims through negoriarion. NOW,THEREFORE,in consideration of the mutual covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: Agreement 1. Tollin� Period. The parties hereby stipulate that all statutes of limitations and other legal or equitable limitations periods, whether statutory, common law, or otherwise that apply to the Claims,shall be suspended and tolled from the effective date of this Agreement until this Agreement is terminated pursuant to Section 2 (the "Tolling Period"). The Tolling Period shall not be included in computing the time limited by any statute of lunitation or other legal or equitable limitation period applicable to the Claims. No garty shali assert,plead,or raise against the uther party in any fashion, whether by ansa�ver, motion, or otheiwise, any defense based on the running of any statute of limitarion or other legal or equitable limitation period that applies to the Claims, during or as a result of the Tolling Period. Further, no pariy shall file suit or otherwise commence litigafion against the other party conceming any of the Clairns during the Tolling Period. 2. Termination. This Agteement may be terminated by any party at any time by delivering written notice of termination to the other party. The effective date of termination s6a11 bc the first to occur of the following: (a) the day that is thirty (30) days after the notice of termination is delivered to the other party; or (b) sixty(60)days after the MGP Site is delisted from the NPL. �, 3. .No Admission. Nothing in this Agreement shall constitute an admission of fact, responsihility, fault, or liability of any kind,.or consdlute e waiver or limitation of any legal claim or defense available to any pariy. Thia Agreement shall not be offered into evidence or used by any party in any judicial proceeding for any purpose except an action to enforce terms o�or for damage for breach of�this Agreement. 4. Confidendalirv. Except as required by law, the partiss shall not disclose this Agreement to any�third party, other thaa the parties' affiliates and their respective insurers, officers,directors,attomeys,experts,or ageuts. 5. . Notices. All notices regarding this Agreement shall bc in rvriting, shall be directed to the persons and addresses set forth in this Section, and shall be deemed duly given: (a)when peisonally delivered to the other party; or(b)two(2}business days after being posted by certified or registered mail. All norices shall be delivered as addressed below. Any party may change its authorized representative and address upon written notice to the other pariy. To the City: Ruger A.Lubovich City of Bremertan Norm Dicks Government Center 345-6th Street,Suite 600 Bremerton,WA 98337 � To Cascade: c%Daniel S.Kuntz IVmU Resources Group,Inc. P.O.Box 5650 12U0 West Cenhuy Avenue Bismarck,ND 58506-5650 6. Governing Law and Venue; Interpretation. This Agreement is W be construed in accordance with tha laws of Washington and all proceedings to interpret or enforce this Agreement shail ba brought in a court of cornpetent jurisdiction in Kitsap County, Washingion. In any acrion between the parties to interpret or enforce any of the tetms and conditions of this Agreement,the substantially prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, incbuding those incurred at trial or on appeal. No adverse interpretation shall be applied against any party for drafting any portion of this Agreement. 7. .An,endment. This Agreement may not be changed, modified,or amended excepl by writing sigaed by all parties. 8. Successors: Assignment. This Agreement shall be binding on, and inure to the benefit of, the parties and their respective successors and assigns, and their respectivc af�iliates, subsidiaries,parents, and related companies. IVo party may assign its rights or obligations under this Agreement without the consent of the other party,which consent may be withheld in the sole discretion of such party. 9. Unenforceable Provisions. If any provision of this Agreement is invalid, illegal, " or unenforceabte,such provision shall be considered severed from the rest of this Agreement and the remaining provisions shall continue in fiill force and effect es if the invalid provision had not been included. 10. Authority to Execute. Each person executing thie Agreement represents and warrants that he or she is fully authorized to execute this Agreement on behalf of the party he or she represents. 11. Counterparts. Tlris Agreement may be executed in caunterparts, and all such counterparts onca so executed shall together be deemed tfl constitute ona final agreement, as if one document had been signed by all parties, and each such counterpart, upon execution and delivery, shall be deemed a complete original, binding on the parties. An email copy of an original signature shail be deemed to have the same force and effect es the original signature. IN WITNESS VVHEREOF,the parties hereby execute this Agreement. CITY OF BREMERTON, a Washington municipal corporation - —�,r._ �______. _------ H. �--� �._..,..�--_--� �`"ti �--' �..._.`'�a, Ptinted Natne:�F-ts�..,,,,�,�,a ti►c H Title: Gt� ���E_�_ CASCADE NAT GAS CORPORA,TION, a Washington co ra on , . By: Printed Name: � ,��0`r`Si�'� Title:l ,�'F�v z`��� v`'�� r��G1 P� �" o . TOLLING AGREEMENT This TOLLING AGREEMENT ("Agreement"), effective as of April _, 2016, is made and entered into by and between CITY OF BREMERTON, a Washington municipal corporation (the "City"), and CASCADE NATURAL GAS CORPORATION, a Washington corporation ("Cascade"). Recitals A. WHEREAS, the parties assert they may have claims against one another ("Claims") for environmental contamination at and around the location of a former manufactured gas plant ("MGP") once operated on real property and beachfront on the south shore of Port Washington Narrows between Thompson Drive and Pennsylvania Avenue in Bremerton, Washington (the"MGP Site"). The MGP Site is listed on the National Priorities List (NPL) maintained by the United States Environmental Protection Agency (EPA) under EPA identification WAN001002907. B. WHEREAS, absent this Agreement, the parties could commence litigation against , one another to prosecute the Claims. C. WHEREAS, the parties wish to avoid the expense and burden of litigation at this time and allow an opportunity for the parties to attempt to resolve the Claims through negotiation. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are " hereby acknowledged, the parties agree as follows: Agreement 1. Tollin Pg eriod. The parties hereby stipulate that all statutes of limitations and other legal or equitable limitations periods, whether statutory, common law, or otherwise that apply to the Claims, shall be suspended and tolled from the effective date of this Agreement until this Agreement is terminated pursuant to Section 2 (the "Tolling Period"). The To(ling Period shall not be included in computing the time limited by any statute of limitation or other legal or equitable limitation period applicable to the Claims. No party shall assert, plead, or raise against the other party in any fashion, whether by answer, motion, or otherwise, any defense based on the running of any statute of limitation or other legal or equitable limitation period that applies to the Claims, during or as a result of the Tolling Period. Further, no party shall file suit or otherwise commence litigation against the other party concerning any of the Claims during the Tolling Period. 2. Termination. This Agreement may be tertninated by any party at any time by delivering written notice of termination to the other party. The effective date of termination shall be the first to occur of the following: (a) the day that is thirty (30) days after the notice of termination is delivered to thc other party; or (b) sixty (60) days after the MGP Site is delisted from the NPL. 3. No Admission. Nothing in this Agreement shall constitute an admission of fact, responsibility, fault, or liability of any kind, or constitute a waiver or limitation of any legal claim or defense available to any party. This Agreement shall not be offered into evidence or used by any party in any judicial proceeding for any purpose except an action to enforce terms of, or for damage for breach of, this Agreement. 4. Confidentialitv. Except as required by law, the parties shall not disclose this Agreement to any third party, other than the parties' affiliates and their respective insurers, officers, directors, attorneys, experts, or agents. 5. Notices. All notices regarding this Agreement shall be in writing, shall be directed to the persons and addresses set forth in this Section, and shall be deemed duly given: (a) when personally delivered to the other party; or (b) two (2) business days after being posted by certified or registered mail. All notices shall be delivered as addressed below. Any party may change its authorized representative and address upon written notice to the other party. To the City: Roger A. Lubovich City of Bremerton Norm Dicks Government Center 345 - 6th Street, Suite 600 Bremerton,WA 98337 To Cascade: c/o Daniel S. Kuntz MDU Resources Group, Inc. P.O. Box 5650 1200 West Century Avenue Bismarck,ND 58506-5650 6. Governin� Law and Venue; Interpretation. This Agreement is to be construed in accordance with thc laws of Washington ancl all proceedings to interpret or enforce this Agreement shall be brbught in a court of competent jurisdiction in Kitsap County, Washington. In any action between the parties to interpret or enforce any of the terms and conditions of this Agreement, the substantially prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including those incurred at trial or on appeal. No adverse interpretation shall be applied against any party for drafting any portion of this Agreeme��t. 7. Amendment. This Agreement may not be changed, modified, or amended except by writing signed by all parties. 8. Successors; Assi�ent. This Agreement shall be binding on, and inure to the benefit of, the parties and their respective successors and assigns, and their respective affiliates, subsidiaries, parents, and related companies. No party may assign its rights or obligations under this Agreement without the consent of the other party, which consent may be withheld in the solc discretion of such party. 9. Unenforceable Provisions. If any provision of this Agreement is invalid, illegal, or unenforceable, such provision shall be considered severed from the rest of this Agreement and the remaining provisions shall continue in full force and effect as if the invalid provision had not been included. 10. Authority to Execute. Each person executing this Agreement represents and warrants that he or she is fully authorized to execute this Agreement on behalf of the party he or she represents. � 11. Counterparts. This Agreement may be executed in counterparts, and all such counterparts once so executed shall together be deemed to constitute one final agreement, as if one document had been signed by all parties, and each such counterpart, upon execution and delivery, shall be deemed a complete original, binding on the parties. An email copy of an original signature shall be deemed to have the same force and effect as the original signature. IN WITNESS WHEREOF, the parties hereby execute this Agreement. CITY OF BREMERTON, a Washington municipal corporation By: Printed Name: 12cr 6�_ t�,�nc v lc f� Title: l�t.'f� /���Y � CASCADE NATURAL GAS CORPORATION, a Washington corporation By: Printed Name: Title: