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HomeMy WebLinkAbout000569 Original ContractTHE WESTERN PORT ANGELES HARBOR 72405241.3 0012033 -00061 PARTICIPATION AGREEMENT FOR DATE: r 17 20 1 City of Port Angeles Record #000569 PARTICIPATION AGREEMENT FOR THE WESTERN PORT ANGELES HARBOR This Participation Agreement for the Western Port Angeles Harbor "Agreement is made and entered into by and among those parties whose authorized representatives have executed this Agreement (collectively, the "Participants" and individually, a "Participant This Agreement has been formed through settlement negotiations pursuant to that Common Interest Agreement, dated July 22, 2008, and amended effective May 7, 2012 (the "CIA which remains in effect between its signatories. However, to the extent that there may be inconsistencies between this Agreement and the CIA, the provisions of this Agreement shall prevail. RECITALS A. The Participants have been identified as potentially liable persons "PLPs by the Washington Department of Ecology "Ecology under the Washington Model Toxics Control Act, Chapter 70.105D RCW, as amended "MTCA and may otherwise be alleged to be liable for alleged releases of hazardous substances and natural resource damages "NRD The Western Port Angeles Harbor means the Western Port Angeles Harbor site as defined in the Agreed Order. The Agreement is intended to provide a process for funding the costs of work required under an Agreed Order with Ecology for a Remedial Investigation/Feasibility Study "RI/FS in Western Port Angeles Harbor and any other work approved under this Agreement by the Participants' Group by unanimous vote (collectively the "Work B. The Participants have certain common interests relating to Western Port Angeles Harbor. The Participants recognize that their common interests will be best served at this time through mutual cooperation and agreement. 724052413 0012033 -00061 1 C. Without admitting any fact, responsibility, fault, or liability in connection with Port Angeles Harbor, the Participants agree, in accordance with the terms and conditions set forth herein, to cooperate with each other to provide a finding mechanism among themselves on an interim basis for the costs of the Work and to solicit the participation of other PLPs in remedial actions at Western Port Angeles Harbor. D. Certain of the Participants and Ecology have conducted prior investigations or other work in Western Port Angeles Harbor; and, to the extent practicable, the Participants intend to use the information, and analyses that were prepared previously by Participants or Ecology (to the extent use of the Ecology information is in the Participant's interest) in order to promptly and cost effectively perform the Work. 1.1 executing with Ecology that will require completion of a Remedial Investigation/Feasibility Study for the Western Port Angeles Harbor Site. 1.2 "Authorized Representative" shall mean those persons so designated on the signature page of this Agreement. 1.3 "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, et seq. 1.4 "Confidential Information" shall mean any and all information, data, analyses, or correspondence and documents created, produced, or employed pursuant to this Agreement by the Participants or their Authorized Representatives, until disclosed to a non Participant and only to the extent specifically disclosed to a non Participant, including documents created by the Participants and/or their Authorized Representatives pursuant to this Agreement (e.g., without 72405241 3 0012033 -00061 TERMS 1.0 DEFINITIONS "Agreed Order" shall mean the Agreed Order that the Participants anticipate 2 limitation, drafts, position papers, technical reports or correspondence, including email correspondence, among the Participants, collectively, "Participant- Created Documents Notwithstanding the foregoing, Confidential Information shall not include any document or other information that has been obtained from public or other sources outside of the Participants to this Agreement. 1.5 "Consulting Agreement" shall mean the agreement between the Participants and the Group Consultant(s) to implement the Agreed Order. 1.6 "Coordinating Consultant" shall mean Floyd /Snider. 1.7 "Day" shall mean calendar day unless provided otherwise. 1.8 "Effective Date" shall mean the date set forth in Section 9. 1.9 "Group Consultant(s)" shall mean Exponent, Inc., Anchor QEA, Integral Consulting, and Floyd/Snider. 1.10 "Group Remedial Costs" shall mean all fees and expenses incurred after February 26, 2013 in support of the Work on tasks that are specifically approved by the Participants as Group Remedial Costs. Except as provided otherwise in Section 4.0, Group Remedial Costs shall not include fees or expenses incurred for any Participant's private attorney or consultant, internal expenses of any Participant such as salaries or benefits, or for any other costs incurred on behalf of and for the benefit of an individual Participant. 1.11 "Hazardous Substances" shall mean those substances defined as such under MTCA, and shall also include wood debris. 1.12 "MTCA" shall mean the Model Toxics Control Act, as amended, Chapter 70.105D RCW. 72405241 3 0012033 -00061 3 1.13 "Participants" shall mean those individuals or entities that have executed this Agreement, that have not withdrawn from this Agreement, and that are in compliance with the provisions of this Agreement. 1.14 "Participants Group" shall mean, collectively, all of the Participants who are in good standing under this Agreement. 1.15 "Voting Power" shall mean the number of votes collectively held by all Participants. Each Participant in good standing shall have one vote on all matters expressly requiring a vote under this Agreement or otherwise required for its implementation, including all decisions involving amendments to this Agreement; provided, however, that Nippon Paper Industries USA Co., Ltd. and Merrill Ring shall share a single vote. 1.16 "Work" shall mean those activities described in Recital A of this Agreement. 2.0 ADMINISTRATION 2.1 Meetings. Except as otherwise provided in this Agreement, no activity or action under this Agreement shall be undertaken unless approved at a meeting or by email vote of the Participants in accordance with the procedures set forth in this Section 2.0. Meetings shall be open to all Participants in good standing. 2.2 Call of Meetings. Meetings of the Participants may be called at any time by the Participants representing twenty -five (25) percent or more of the Voting Power. 2.3 Notice of Meetings. Notice of the time, place, and purpose of any meeting of the Participants, including any telephonic meeting, shall be provided by the Participant or Participants calling the meeting to all other Participants at least five (5) business days before the date of such meeting either personally, by telephone, by mail, facsimile, or e -mail addressed to each Participant at the addresses set forth on the signature page of this Agreement. Such notice shall include sufficient detail of the subjects to be considered and the substance of any votes to 724052413 0012033 -00061 4 be taken to provide adequate notice to each Participant. To the extent practicable, any documents to be considered at a meeting shall be distributed with notice of such meeting. A meeting may be called on less than five (5) business days' notice if the call for the meeting is initiated, approved or ratified by Participants constituting at least seventy -five (75) percent of the Voting Power. 2.4 Proxy Voting. Any Participant may appoint in writing any other Participant to act as its proxy at a meeting. 2.5 Quorum. The presence of Participants, in person, by telephone, or by proxy, at any duly- convened meeting (under Section 2.3) representing seventy -five (75) percent of the Voting Power shall constitute a quorum for the transaction of business. Alternatively, if more than seventy -five (75) percent of the Voting Power responds within seven (7) days to a request to vote by e -mail, those responses shall be deemed to qualify as an e-mail quorum for purposes of voting on an activity or action under this Agreement. In the event a quorum is not present, no action may be undertaken, and the meeting shall be adjourned and rescheduled by notice as provided in Section 2.3. The Participants at a duly- convened meeting at which a quorum is present may continue to conduct business until adjournment following departure of any Participant(s), provided that at least one -half of the Voting Power remains at the meeting. 2.6 Voting Procedure. The Participants shall attempt to make all decisions under this Agreement by unanimous consent. Except in instances where unanimous vote is specified by this Agreement, any matter that cannot be decided by unanimous consent shall be decided upon the favorable vote of at least seventy -five (75) percent of the Voting Power present in person, by Authorized Representative, or by proxy at any duly- convened meeting, or by e -mail vote as provided for in Sections 2.1 and 2.5. A vote may be held on a subject not identified in the notice 724052413 0012033 -00061 5 of Meeting under section 2.3 upon the favorable vote of at least seventy -five (75) percent of the Voting Power. For purposes of this Paragraph 2.6, only Participants in good standing shall be counted in determining the Voting Power. 2.7 Annroval of Deliverables and Communications with Ecoloev. The Participants shall have an equal opportunity to review and comment on all draft deliverables and draft substantive written communications to be transmitted to Ecology. Prior to transmission to Ecology, all such deliverables and substantive written communications shall be approved by the Participants in accordance with the Voting Procedure set forth in section 2.6 above. 2.8 Authorized Renresentative. Upon execution of this Agreement, each Participant shall designate in writing on the signature page to this Agreement one or more Authorized Representatives who shall have the power to receive notices of meetings, participate in meetings, participate in committees, authorize or object to payment of invoices, and, where appropriate, vote on its behalf under this Agreement. Upon five (5) days' written notice to the other Participants, any Participant may change its Authorized Representative. 2.9 Committees. The Participants may form any committee comprised of less than all of the Participants. A Committee under this Section may make recommendations to the full group of Participants, but may not make any binding decisions for the Participants without the prior authorization of all the Participants. Any committee created under this Section shall meet as necessary in the opinion of the Committee members and shall promptly report to the Participants any actions, recommendations, or proposals. Membership on a Committee shall be voluntary and without compensation. Committee meetings shall be open to all Participants. Any Participant shall be entitled to have its Authorized Representative serve on any or all Committees formed under this Agreement. 724052413 0012033 -00061 6 2.10 Group Consultant. Consistent with the attached RI/FS Scope of Work and Cost Estimate (the "Scope of Work the Participants will retain Floyd/Snider as the Coordinating Consultant to implement the Scope of Work, with Exponent, Inc., Anchor QEA, and Integral Consulting as subcontractors to the Coordinating Consultant. 2.11 Conflicts of Interest. The Participants expressly waive any possible conflict of interest that might have arisen or may arise in the course of executing the Scope of Work by a Group Consultant(s); and activity or conduct by a Group Consultant(s) as part of the Scope of Work shall not be the basis to disqualify a Group Consultant(s) in a future matter unrelated to the subject matter of this Agreement. Each time any new Participant joins the Group after the Group's execution of the Agreed Order, the Participants shall provide the name of each new Participant to the Group Consultant(s) and shall require the Group Consultant(s) to disclose promptly whether the consultant and/or any employee of the consultant who is or may be assigned to perform any aspect of the Work is performing or has performed services for such new Participant. However, any new Participant that joins the Participants Group in accordance with section 3.3 below cannot preclude the continued use of Group Consultant(s) already retained. Each Participant reserves the right to use a Group Consultant(s) previously retained by the Participant as an expert witness. 3.0 MEMBERSHIP 3.1 Participants. There shall be one class of Participants under this Agreement, except that Nippon Paper Industries USA Co., Ltd. and Merrill Ring shall share a single vote on all matters arising under this Agreement. 3.2 Funding and Rights. Participants shall be responsible for providing funding throughout the Work, as provided more specifically in Section 4 of this Agreement. Participants 72405241.3 0012033 -00061 7 in good standing may vote on all actions and decisions requiring a vote for implementation of this Agreement, including all decisions involving amendments to this Agreement. 3.3 New Participants. Any party may join the group as a Participant after the Effective Date upon (1) the favorable vote of all (100 of the Voting Power (for purposes of this Paragraph 3.3, only Participants in good standing shall be counted in determining the Voting Power), (2) payment of an amount determined by favorable vote of all (100 of the Voting Power, and (3) compliance with any other conditions established by the Participants Group. New Participants shall also agree to and execute the CIA. 3.4 Withdrawal. A Participant may withdraw from this Agreement upon written notice to each of the other Participants, effective the date the notice is postmarked or transmitted by facsimile or e-mail. Any Participant that withdraws from participation in this Agreement shall have no further rights under this Agreement but shall remain subject to the terms and conditions of this Agreement applicable to withdrawing or removed Participants, including, without limitation, all of the provisions of Section 5 relating to confidentiality, and shall remain liable to pay its share of Group Remedial Costs approved and assessed pursuant to this Agreement up to the date of withdrawal. No Participant may obtain refunds for sums contributed prior to the date of withdrawal, except by unanimous approval of the other Participants. This paragraph 3.4 shall terminate automatically on the effective date of the Agreed Order. 3.5 Default. In the event a Participant fails to make any contribution or payment by the due date or breaches any other term or condition of this Agreement, such Participant shall be in default under this Agreement. If such Participant fails to pay all amounts due, including interest for late payment, within fifteen (15) days after receiving written notice of such Participant's default, or fails to cure within thirty (30) days any other breach of this Agreement, 72405241 3 0012033 -00061 8 or breaches an incurable provision of this Agreement, such Participant shall be deemed to be in default but shall remain subject to all of the provisions of Section 5 relating to confidentiality, and shall remain liable to pay its share of Group Remedial Costs approved and assessed pursuant to this Agreement. Any Participant deemed to be in default shall not be considered in good standing for purposes of this Agreement. In the event the defaulting Participant does not pay its share of costs incurred by the Group Consultant(s), the other Participants shall consider paying for the defaulting Participant's share on a per capita basis to the extent necessary to fund the Work. 3.6 Reinstatement. A Participant that has been removed as provided herein may rejoin the Participants Group upon the favorable vote of at least 75% of the Voting Power (for purposes of this Paragraph 3.7, only Participants in good standing shall be counted in determining the Voting Power) and upon compliance with any conditions established by the Participants Group. 724052413 0012033 -00061 4.0 COSTS 4.1 Apportionment of Groun Remedial Costs and Initial Assessments. Group Remedial Costs shall be apportioned among all Participants as set forth in this section subject to the reservation of rights in section 4.5 below. Each Participant shall be responsible for one equal share of Group Remedial Costs, except that Nippon Paper Industries USA Co., Ltd. and Merrill Ring shall be treated as a single Participant for purposes of sharing Group Remedial Costs pursuant to this Agreement. Each Participant shall make an initial Group Remedial Cost contribution of $242,000.00 within fourteen (14) days after the Effective Date of this Agreement. Payments shall be made directly to the Group Account, held and administered by the Participant Group Cashier authorized under section 4.6 herein. The amount of scheduled future contributions shall be based on Work Orders approved by the Participant Group. The Group 9 Consultant(s) shall periodically prepare Work Orders to implement the Work, and shall distribute them to the Participants for review and approval. Each Participant shall pay an equal share of the amount specified in the second and third Work Orders approved by the Participants, not to exceed the amounts shown below. The Participants shall make additional contributions at the times specified below: Date Contribution is Due Contribution Not to Exceed Within 30 days after Participant Group approval of $128,000.00 Second Work Order Within 30 days after Participant Group approval of $105,000.00 Third Work Order Additional contributions shall be assessed and paid in accordance with Section 4.2 of this Agreement. 4.2 Payment of Additional Group Remedial Costs. Any assessments against Participants for Group Remedial Costs beyond the contributions described in section 4.1 above can be approved only by favorable vote of all the Participants. Each Participant shall pay additional assessments of equal shares of Group Remedial Costs to the Group Account within thirty (30) days after the date of such a favorable vote of all the Participants. Additional assessments of equal shares of Group Remedial Costs will be made only as often as necessary to fund the Work. Late payments shall accrue interest at prime plus two (2) percent. Each assessment shall be issued in advance of the performance of the portion of the Work that the assessment is expected to fund. If necessary to perform the Work, the Participants shall consider reassessing and paying on a per capita basis any amounts due from a Participant(s) who is in default for such costs. Nothing herein shall preclude a Participant from seeking reimbursement 724052413 0012033 -00061 10 for these reassessed costs from the Defaulting Participant(s). Any remaining (unused) balance of amounts assessed for Group Remedial Costs shall be returned to the Participants in proportion to their paid -in contributions. 4.3 Accounting. The Consulting Agreement shall require the Group Consultant(s) to provide to the Participants written monthly invoices for the efforts expended on Work under this Agreement. Within ten (10) days of receipt of an invoice, each Participant shall send written notice to the Participant Group Cashier either (a) approving payment of that invoice, or (b) providing specific objections to the invoice. The Participant Group Cashier shall pay all undisputed portions of an invoice within the time specified in the Consulting Agreement. The Participants will immediately work in good faith with the Group Consultant(s) to resolve any disputes over invoices, including but not limited to use of any dispute resolution process set forth in the Consulting Agreement. The Consulting Agreement shall further require that, upon termination of this Agreement, the Group Consultant(s) shall, upon request, provide to the Participants a final accounting of monies received, spent or obligated under this Agreement. 4.4 Purpose of Funds. All monies paid by the Participants 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 sanctions. The Participants agree that, to the extent possible, the monies paid to any Group Consultant(s) pursuant to this Agreement shall be viewed as necessary costs of remedial action and response under applicable federal and state law. 4.5 Interim Allocation. Except as provided otherwise in section 4.1 with respect to Nippon Paper Industries USA Co., Ltd. and Merrill Ring, the Participants are contributing equal shares of Group Remedial Costs on an interim basis in order to timely commence the Work. All costs paid by the Participants under this Agreement are subject to reallocation in a 72405241 3 0012033 -00061 1 1 subsequent proceeding. In any future reallocation, the liability of Nippon Paper Industries USA Co., Ltd. and Merrill Ring shall be allocated separately. The Participants reserve all rights that each may have regarding a final allocation of liability for expenses incurred pursuant to this Agreement. The Participants expressly agree that this interim allocation is non binding and shall have no precedential or evidentiary effect with respect to Western Port Angeles Harbor or any other site and shall not be disclosed to the trier of fact, presiding judge, arbitrator, or other decision maker, except (a) for purposes of reallocation, (b) (and only as necessary) as evidence that a Participant was not recalcitrant, or (c) in a proceeding to enforce this Agreement. Prior to or after completion of the Work, the Participants may unanimously agree upon revised allocation percentages among themselves and/or other parties, or the Participants may commence alternative dispute resolution or litigation to determine final allocation percentages. 4.6 Participant Group Cashier. The Port of Port Angeles shall serve as the Participant Group Cashier (Cashier). The Cashier shall be responsible for (i) managing the Group Account (which shall be held in an account established by the Cashier); (ii) sending out assessments to each Participant for its share of Group Remedial Costs; (iii) sending out a current ledger of the Group Account to each Participant prior to each vote on further assessments of Group Remedial Costs; (iv) making deposits; (v) signing checks for the payment of Group Remedial Costs; (vi) sending default notices for non payment; and (vii) such other duties as the Participants may delegate. The Cashier may be removed at any time by a vote of 75% of the Voting Power. Upon removal or resignation of the Cashier, the Participants may, by a vote of 75% of the Voting Power, select a successor Cashier to perform the duties set forth herein. 4.7 Ecoloav Oversight Costs. Pursuant to Section VIII (B) of the Agreed Order, the Participants are required to reimburse Ecology for costs incurred by the agency associated with 72405241 3 0012033 -00061 12 overseeing implementation of the Agreed Order. These Ecology oversight costs shall be apportioned equally among the Participants, except that Nippon Paper Industries USA Co., Ltd. and Merrill Ring shall be treated as a single Participant for purposes of sharing such oversight costs. Each Participant shall pay its portion of the oversight costs directly to Ecology. Each Participant shall promptly review each oversight cost invoice upon receipt of such invoice from Ecology. Within fourteen (14) days of receipt of an Ecology invoice, the Participants shall either (a) approve the invoice by a favorable vote of all the Participants, or (b) pursue further discussion with Ecology regarding the invoice. Invoices modified through discussion with Ecology must be approved for payment by a favorable vote of all the Participants. If additional discussions with Ecology fail to resolve the Participants' concerns with the invoice, the Participant Group may by favorable vote of all the Participants pursue dispute resolution with the agency pursuant to Section VIII (J) of the Agreed Order. Failure by a Participant to pay its share of an Ecology oversight invoice within sixty (60) days of a favorable vote of the Participants Group regarding the invoice or the conclusion of the Agreed Order dispute resolution process will constitute default under this Agreement. If necessary to preserve the Participants' compliance with the terms of the Agreed Order, the Participants shall consider reassessing and paying on a per capita basis any amounts due from a Participant(s) who is in default for such costs. 5.0 CONFIDENTIALITY AND USE OF INFORMATION 5.1 Confidential Information. Throughout the term of this Agreement, the Participants may disclose or transmit Confidential Information to each other, to each other's representatives, or to any common counsel or consultant retained by the Participants, pursuant to the CIA and the provisions of this Agreement. Confidential Information may be disclosed to, or transferred among the Participants orally or in writing or by any other appropriate means of 724052413 0012033 -00061 13 communication. No claim of attorney client privilege, joint defense privilege, work product immunity, deliberative privilege, or any other privilege or protection shall be waived as a result of the exchange or transmittal of Confidential Information. 5.2 Preservation of Privilege: Designated Documents. It is the purpose of this Section 5 and the CIA to ensure that the exchanges and disclosures of Confidential Information contemplated by this Agreement do not diminish in any way the confidentiality of the Confidential Information and do not constitute a waiver of any privilege or protection otherwise available, including all protections available under Chapter 42.56 RCW and other applicable law. The Participants agree to be bound by the terms of this Agreement and the CIA in any subsequent litigation between or among Participants and/or non Participants, and to forego in such proceeding any argument that another Participant has waived any privilege or protection otherwise available by the exchange of Confidential Information in this Agreement. The Participants intend by this Section 5 to protect from disclosure all Confidential Information exchanged among any Participants or between any Participant and common counsel or any consultant retained by the Participants to the greatest extent permitted by law regardless of whether or not the Confidential Information is marked "Confidential." Although Confidential Information need not be marked "Confidential" to receive protection under this Agreement, each of the Participants and their Authorized Representatives shall be deemed to have actual notice that information contained in any document stamped or otherwise designated in writing as "Confidential" is considered to be Confidential Information as defined in this Agreement. 5.3 Maintenance of Confidentiality. Each Participant agrees to the extent permitted by law that all Confidential Information received from any other Participant or its counsel, or any consultant retained by the Participants, shall be held in strict confidence by the receiving 72405241 3 0012033 -00061 14 Participant. The Participants subject to public disclosure laws shall maintain confidentiality to the extent permissible for public disclosure requests on any grounds that, in the legal judgment of the Participant to whom the request is directed, are available under Chapter 42.56 RCW and other applicable law. Confidential Information shall be used only for the purposes of this Agreement, and shall not be used for any other purpose (such as in the ordinary course of business or for competitive purposes) without the prior written consent of the Participant that produced or created the particular Confidential Information. Each Participant agrees that, except for disclosure authorized under Section 5.8 or compelled under Section 5.5, Confidential Information shall only be provided to the Authorized Representative designated by each Participant, counsel for each Participant (including attorneys, paralegals, clerical or support staff), employees of each Participant who provide expert advice or other assistance for the purpose of this Agreement, Group Consultant(s), "outside" independent consultants retained by individual Participants or a Participant's insurer(s). Every person or company that receives Confidential Information is obligated to maintain its confidentiality in accordance with this Agreement. 5.4 Settlement Discussions: Anticipation of Litieation. The Participants agree that the matters undertaken pursuant to this Agreement, including without limitation, the exchange of Confidential Information, are being undertaken for purposes of defending MTCA or other claims and as a joint defense in anticipation of litigation which could be expected. The Participants agree that all Confidential Information developed, generated, exchanged or otherwise produced in connection with this Agreement is work product generated for purposes of settlement discussions and in anticipation of litigation. 72405241 3 0012033 -00061 15 5.5 Compelled Disclosure. If Confidential Information becomes the subject of an administrative or judicial subpoena or interrogatory or demand for production pursuant to litigation or order or public disclosure request requiring disclosure by a Participant or its custodian of records, then he or she must satisfy confidentiality obligations hereunder by objecting to production of any such Confidential Information on grounds of confidentiality (or, for public disclosure requests, on any grounds that in the legal judgment of the Participant to whom the request is directed are available under Chapter 42.56 RCW or other applicable law) and/or seeking an order for protection from disclosure. The Participant subject to any such disclosure request or demand shall notify the Participant that generated the Confidential Information at least fourteen (14) days prior to any disclosure and shall inform the generating Participant of all material information concerning such disclosure request or demand. If the generating Participant believes the requested information is Confidential Information as provided in this Agreement and objects to production thereof, the generating Participant will join the Participant from whom the information has been requested in objecting to production and/or seeking an order for protection from discovery. Notwithstanding any other provision of this Agreement, if the generating Participant does not join the Participant in objecting to production and/or seeking an order for protection, the Participant to whom the disclosure request or demand is made shall be under no obligation to object to production or seek an order for protection. 5.6 Survival of Section. The confidentiality obligations of the Participants under this Agreement shall remain in full force and effect, without regard to whether a Participant is in default, whether this Agreement is terminated, or whether any action arising out of Western Port Angeles Harbor is terminated by formal judgment or settlement. 72405241 3 0012033 -00061 16 5.7 Non Confidential Information. A Participant may disclose to others, or use in any manner, information which the Participant can show has been published and/or has become part of the public record. 5.8 Disclosure of Confidential Information to Trustees. Any disclosures of Confidential Information to the Trustees under this section for purposes of negotiating a settlement of alleged natural resource damages liability, shall only occur after a favorable vote of at least seventy five (75) percent of the Voting Power present at a duly convened meeting, which shall include the favorable vote of the generating Participant that provided the Confidential Information. 5.9 No Oblieation to Share. Except as is necessary to perform the Work, the Participants and their individual counsel, representatives, and independently retained consultants shall not be required to share or exchange any and all information they may possess. 6.0 DENIAL OF LIABILITY 6.1 Each Participant understands and agrees that, by entering into this Agreement, it and every other Participant specifically denies liability or fault for any and all of the facts, legal contentions, and occurrences alleged against it with respect to the Western Port Angeles Harbor. Neither this Agreement, nor any information submitted or any action taken by any Participant pursuant to this Agreement, shall constitute, be interpreted, construed, or used as evidence of any admission of liability or a waiver of any right or defense. 7.0 RESERVATION OF RIGHTS; STANDSTILL 7.1 Nothing contained in this Agreement shall waive or release any right, claim, defense, interest, or cause of action that any Participant may have with respect to any other person, entity or agency including, without limitation, Ecology, the United States, the Trustees, the State of Washington, other Participants, or non Participants. Each Participant agrees that, 72405241 3 0012033 -00061 17 until expiration, termination or its withdrawal from this Agreement, it shall not initiate action against any other Participant for any claims or causes of action relating to the Work; provided, however, that this limitation does not apply to initiation of action against a Participant who does not pay its share of costs incurred by the Group Consultant(s). A Participant may pursue such claims or causes of action in order to protect its interests in any action that may be initiated against the Participant by any non Participant. 7.2 All applicable statutes of limitations shall be tolled and all claims of laches shall be waived for any claims or causes of action, relating to the subject matter of this Agreement, that one Participant may have against other Participants for the period of time during which each is a Participant under this Agreement. Nothing in this Agreement is intended or should be construed to limit, bar, or otherwise impede the enforcement of any term or condition of this Agreement against any Participant. This standstill section is not retroactive and becomes effective upon the Effective Date. 8.0 RELATIONSHIP OF PARTICIPANTS 8.1 Each Participant represents that it has sought and obtained any appropriate legal advice it deems necessary prior to entering into this Agreement. No Participant or its Authorized Representative shall act or be deemed to act under this Agreement as legal counsel or representative of any other Participant. No attorney client relationship is intended to be created between Participants and the Authorized Representatives of any other Participant as a result of the operations of this Agreement. Nothing herein shall be deemed to create a partnership or joint venture and/or a principal and agent relationship between or among the Participants or their representatives. No Participant or Participant's representatives shall have authority to act as general agent for any other Participant or to bid for or to undertake any contracts enforceable against any other Participant, unless specifically provided in this Agreement. Notwithstanding 724052413 0012033 -00061 18 the foregoing, and as provided in Section 5.4, the Participants intend that the matters undertaken pursuant to this Agreement are being undertaken as a joint defense in anticipation of litigation with respect to Western Port Angeles Harbor. The Participants expressly waive any possible conflict of interest that might have arisen or may arise in the course of their joint activity or conduct undertaken pursuant to this Agreement. This Agreement shall not be the basis to disqualify counsel to any of the Participants in a future matter unrelated to the subject matter of this Agreement. The Participants further agree that all communications pursuant to this Agreement are made in the course of compromise negotiations and are inadmissible to the extent specified in Federal Rule of Evidence 408 and Washington Rule of Evidence 408. 8.2 Public Statements. Press releases and other public statements made on behalf of the Participants Group shall be approved in advance by the Participants by a vote of 75% of the Voting Power. Each Participant may respond on its own behalf to inquiries from the public or press so long as such Participant makes clear that it is not speaking on behalf of the Participants Group. 8.3 Insurance. The Participants do not intend by entering into this Agreement to prejudice any Participant with respect to its insurers and instead, the Participants anticipate that the actions taken pursuant to this Agreement will benefit such insurers. 9.0 EFFECTIVE DATE; DURATION; TERMINATION 9.1 The Participants intend to execute this Agreement in conjunction with or subsequent to signing the Agreed Order. The effective date of this Agreement shall be •1 14 2013, provided this Agreement is executed by all of the PLPs that sign the Agreed Order. This Agreement will automatically terminate upon receipt of a certification by Ecology that the Work under the Agreed Order has been satisfactorily completed. Provided, however, the payment obligations under this Agreement shall remain in effect until satisfied, 72405241.3 0012033 -00061 19 10.0 DISPUTES REGARDING INTERPRETATION OF AGREEMENT 10.1 If disputes regarding interpretation of this Agreement arise, such disputes shall be resolved in the first instance by mutual agreement of the Participants. If the Participants cannot resolve any such disputes within thirty (30) days, the Participants shall seek to retain a mediator to resolve the disputes in a non binding mediation. If mediation is not successful, such disputes shall be resolved by applicable legal processes. 11.0 NOTICES 11.1 All notices, bills, invoices, reports, and other communications to or by a Participant shall be sent to the Participant's Authorized Representative designated in accordance with Section 2.8. 12.0 AMENDMENTS 12.1 This Agreement may be amended only by written agreement of all Participants, except as otherwise provided in this Agreement for decisions to be made by voting power percentages. 13.0 SUCCESSORS AND ASSIGNS; NO THIRD -PARTY BENEFICIARIES 13.1 This Agreement shall be binding upon the successors and assigns of the Participants. No assignment or delegation of the obligation to make any payment or reimbursement hereunder shall release the assigning Participant without the prior written consent of the other Participants. Nothing in this Agreement is intended or shall be interpreted to create any rights in any person not a party to this Agreement. 14.0 NONWAIVER 14.1 Nothing in this Agreement shall be construed to waive any rights, claims, or privileges which any Participant shall have against any other Participant or any other person or entity. If the Participants Group does not act on any default under this Agreement by any 20 72405241 3 0012033 -00061 Participant, the Participants Group shall not be deemed to have waived its right to take action on any future defaults hereunder. 15.0 AUTHORITY OF PARTICIPANTS 15.1 Each Participant represents and warrants that it has all requisite power, and has taken required procedures corporate, public, municipal or otherwise, to enter into and be bound by the terms and conditions of this Agreement. 16.0 COUNTERPARTS 16.1 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 instrument. 17.0 ENTIRE AGREEMENT 17.1 This Agreement, and any subsequent amendments, shall constitute the entire understanding of the Participants with respect to its subject matter. 18.0 GOVERNING LAW 18.1 This Agreement shall be construed under and in accordance with the laws of the State of Washington. Venue for any lawsuit arising out of this Agreement shall be in Clallam County. 19.0 ATTORNEYS' FEES AND COSTS 19.1 Except as otherwise stated herein, the Participants shall bear their own attorneys' fees and costs incurred in connection with the negotiation and implementation of this Agreement. Notwithstanding the foregoing, in any action brought to enforce the terms of this Agreement, the prevailing Participant shall be entitled to recover reasonable attorneys' fees and costs incurred therein. 724052413 0012033 -00061 21 IN WITNESS WHEREOF, the Participants hereto enter into this Agreement. Each person signing this Agreement represents and warrants that he or she is duly authorized to enter into this Agreement by the company or entity on whose behalf that person is signing. 72405241 3 0012033 -00061 22 Name of Participant.. Port of Port Angeles Signature: Printed Name: Jeffery Ro Title: Executive Director Authorized Representatives (First listed representative receives notices and information): Name: Jeffery Robb Title: Executive Director Address: P.O. Box 1350 Port Angeles, WA 98362 Phone: 360 -457 -1138 Fax: 360- 452 -3959 Name: Chris Hartman Title: Director of Engineering Address: P.O. Box 1350 Port Angeles. WA 98362 Phone: 360 417 -3422 Fax: 360 -452 -3959 72405241.3 0012033 -00061 23 Date: Aoril 4. 2013 Name of Participant: Georaia-Pacific LLC Signature: /mot '4a- -..,tir a1 I Printed Name: Traylor Champion Title: Vice President Environmental Affairs Date: April 12, 2013 Authorized Representatives (First listed representative receives notices and information): Name: Mike Hassett Title: Manaeer Environmental Enaineerina Address: 133 Peachtree Street NE Atlanta, GA 30303 Phone: 404 -652 -6874 Fax: 404 -654 -4701 Name: J. Michael Davis Title: Assistant General Counsel Address: 133 Peachtree Street NE Atlanta. GA 30303 Phone: 404 652 -7497 Fax: 404 -584 -1461 72405241.3 0012033 -00061 24 Name of Participant: Nippon Paper Industries USA Co.. Ltd. 774,1 -r Printed Name: Yoshihiro Sagawa Signature: Title: President NPI USA Date: April 5. 2013 Authorized Representatives (First listed representative receives notices and information): Name: Printed Name: Harold Norlund Title: Resident Mill Manager Address: 1815 Marine Drive Port Angeles. Washington 98363 Phone: (3601565 -7034 Fax: (3601452 -6576 Name: Printed Name: Teruo Tamaki Title: Senior Advisor Address: 1815 Marine Drive Port Angeles. Washington 98363 Phone: (3601565 -7063 Fax: (3601452 -6576 72405241.3 0012033 -00061 25 Name of Parti nt: City of Port Ang.eles Signature: Printed Name: Dan McKeen Title: City Manager Date: April 2013 Authorized Representatives (First listed representative receives notices and information): Name: Dan McKeen Title: Address: 724052413 0012033 00061 City Manager P.O. Box 1150 Port Angeles, WA Q110 Phone: (J 417 -4501 Fax: Name: William E. Bloor Title: City Attorney Address: P.O. Box 1150 Port Angeles_ WA 98362 Phone: (;6n) 417-4;' Fax: (360) 417 -4529 26 Name of Participant: Merrill Ring Signature:A.... Printed Name: /1/e r■ti Sy It c.A Title: U.P I 4 401r -t Date: i//4!/2 -0/3 Authorized Representatives (First listed representative receives notices and information): Name: A rnA Title: U, p /T, -rt •,s Address: P O. R ox R+ r4,144./e r i/ ,9 9 83 6 2 Phone: 36 4St 2.3L Fax: 360— Y52.--z..4P a Name: P Snob Title: ?ref Vt.. 4 Address: y" 2 -✓e j;),4.4 2.4, o EA.,.�o•t1�r b./ .4 98 2.0 Phone: Y 2S 1'79 79 0 0 Fax: `l`2.5- 79/S' 724052413 0012033 -00061 ybo 34, o 514g a.- /34 S kosch A 47 rit e f ?"8"."./ lob q 2-0 -717-4 Coe i 27