The URL can be used to link to this page

Home My WebLink About001169 Amendment 1Page 1 of 9 US-DOCS\73274396.2 ADDENDUM NO. 1 MEDIATION AGREEMENT WESTERN PORT ANGELES HARBOR MEDIATION November 2016 This Addendum No. 1 to the October 2016 Mediation Agreement regarding West Port Angeles Harbor (“Addendum No. 1”) is made between Owens Corning, on the one hand, and (1) Georgia-Pacific LLC; (2) Nippon Paper Industries USA Co., Ltd., (3) Merrill & Ring Inc., (4) Port of Port Angeles, and (5) City of Port Angeles, on the other hand (collectively, the “Western Port Angeles Group” or “PLP Group”). All participants to this Addendum No. 1 shall be referred to individually as “Party” and collectively as “Parties.” All defined terms in this Addendum No. 1 shall have the same meaning as set forth in the Mediation Agreement. All provisions of the Mediation Agreement not specifically addressed in this Addendum No. 1 shall remain unchanged. I. OWENS CORNING’S PARTICIPATION IN PLP GROUP MEETINGS AND ACCESS TO INFORMATION At all relevant times while the Mediation Agreement remains in effect, and provided payment of the consideration set forth below is made, Owens Corning shall have access, consistent with the terms of the April 14, 2013 Participation Agreement for the Western Port Angeles Harbor (“PLP Agreement”), to PLP Group meetings (including meetings with Department of Ecology, Natural Resource Trustees and/or governmental authorities), calls, status reports, data and information that the individual members of the PLP Group enjoy, and shall observe the same confidentiality and use of information provisions as provided in Section 5 of the PLP Agreement, which is attached as Exhibit A. Owens Corning shall have the same right to vote as any individual PLP Group member and shall be bound by the voting rules adopted by the PLP Group in the PLP Agreement. II. CONSIDERATION A. Consideration for Owens Corning’s Access to PLP Group Technical Data and Work Product In consideration for access to the same technical information and work product available to the members of the PLP Group regarding the Site, and access to information under development and to be developed in the future by the PLP Group, Owens Corning shall from time to time make contributions as negotiated by the Parties, but approximating a one-fifth share of the cost to the PLP Group to develop such information. Owens Corning agrees to pay into the Group Account described in Section 4.6 of the PLP Agreement within 15 days of this Addendum No. 1 the sum of $469,149.76 for the value received by information now available. In exchange for such information, Owens Corning waives any claims for reimbursement of all such payments 001169 Page 2 of 9 US-DOCS\73274396.2 and shall assert no right to claw back of its consideration, provided Owens Corning shall receive dollar-for-dollar credit for such payments toward any future allocation to be negotiated or judicially determined regarding the Site. B. Sharing of Information Each Party agrees that, in furtherance of the Parties’ common interests, it shall abide by the procedures in Section 2.7 of the PLP Agreement regarding deliverables and substantive communications to Ecology and/or the Natural Resource Trustees. III. MISCELLANEOUS A. Waiver of Conflict: This Addendum No. 1 shall not be construed to create an attorney-client or other fiduciary relationship between a Party and counsel acting for any other Party. Each Party waives any claim of conflict of interest which might arise with respect to counsel for another Party by virtue of its participating in this Addendum No. 1 and sharing of joint defense information; and each Party agrees that it will not rely on this Addendum No. 1 or the sharing of joint defense information as a basis upon which to seek to disqualify legal counsel for any other Party from representing such Party or anyone else in this or any other matter. B. Severability: If any term or provision in this Addendum No. 1 is determined to be illegal or unenforceable, all other terms and provisions in this Addendum No. 1 shall remain effective and shall be enforced to the full extent permitted by law. C. Jointly Drafted: The Parties agree that this Addendum No. 1 was jointly drafted by each Party, that the Addendum No. 1 shall not be deemed prepared or drafted by any one of the Parties, and no inference or rule of construction shall be applied based on the assumption that any individual Party or subset of the Parties drafted any provision herein. D. Binding Effect: Each of the terms of this Addendum No. 1 is binding upon each signatory and each signatory’s predecessors, successors, transferees, assigns, heirs, representatives, principals, officers, directors and employees. E. Reservation of All Defenses and Rights: Nothing in this Addendum No. 1 shall waive any individual Party’s defenses with respect to each other, Ecology or the Natural Resource Trustees, or otherwise affect the rights, defenses or obligations of the Parties with regard to any other existing or future matters, litigation or disputes involving the Parties or third- parties. F. No Admissions or Allocations: Nothing in this Addendum No. 1 shall be construed as an admission of liability or an allocation of a Party’s share of fault or liability, if any. G. Construction: This Addendum No. 1 shall be construed and interpreted in accordance with the laws of the State of Washington. Page 3 of 9 US-DOCS\73274396.2 H. Modifications: No amendment or modification of this Addendum No. 1 shall be binding unless it is in writing and approved by all of the Parties. I. Execution in Counterparts: This Addendum No. 1 may be executed in counterparts, each of which shall constitute an original and all of which shall be deemed together as a single document. J. Signature and Authority: This Addendum No. 1 shall be signed by, or on behalf of, each Party and each Party’s counsel. Each Person who signs this Addendum No. 1 represents that she or he or she is authorized to execute this Addendum No. 1 on behalf of the Party for whom he or she is purporting to sign. By signing this Addendum No. 1, each Party acknowledges and represents that counsel has fully and adequately explained this Addendum No. 1 to their respective Party. Page 4 of 9 US-DOCS\73274396.2 K. Signatures FOR OWENS CORNING: Paul Lewandowski Director, Regulatory Law 1 Owens Corning Pkwy Toledo, OH 43659 (419) 248-8000 APPROVED AS TO FORM: COUNSEL TO OWENS CORNING: Robert M. Howard Latham & Watkins LLP 12670 High Bluff Drive San Diego, CA 92130 (858) 523-5400 William Shaw Ankur Tohan K&L Gates LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104 (206) 623-7580 Page 5 of 9 US-DOCS\73274396.2 FOR GEORGIA-PACIFIC LLC: J. Michael Davis Assistant General Counsel–Environmental 133 Peachtree Street NE Atlanta, GA 30303 (404) 652-5054 APPROVED AS TO FORM: COUNSEL TO GEORGIA-PACIFIC LLC: ________________________________ Steve Thiele Stoel Rives LLP 600 University St., Suite 3600 Seattle, WA 98101 (206) 386-7530 Page 6 of 9 US-DOCS\73274396.2 FOR NIPPON PAPER INDUSTRIES USA CO., LTD.: Steve Johnson Resident Mill Manager P.O. Box 271 Port Angeles, WA 98362 (360) 565-7043 APPROVED AS TO FORM: COUNSEL FOR NIPPON PAPER INDUSTRIES USA CO., LTD.: _______________________________________ Harry Grant Riddell Williams P.S. 1001 4th Ave. Seattle, WA 98154 (206) 389-1574 Page 7 of 9 US-DOCS\73274396.2 FOR MERRILL & RING INC.: Norm Schaaf Vice President 813 E. 8th Street Port Angeles, WA 98362 (360) 452-2367 APPROVED AS TO FORM: COUNSEL FOR MERRILL & RING INC.: _______________________________________ Harry Grant Riddell Williams P.S. 1001 4th Ave. Seattle, WA 98154 (206) 389-1574 Page 8 of 9 US-DOCS\73274396.2 FOR PORT OF PORT ANGELES: Karen Goschen Executive Director 338 W. First Street Port Angeles, WA 98362 (360) 417-4530 APPROVED AS TO FORM: COUNSEL FOR PORT OF PORT ANGELES: _____________________________________________ William Joyce Joyce Ziker & Parkinson, PLLC 1601 Fifth Avenue, Suite 2040 Seattle, WA 98101 (206) 957-5960 Page 9 of 9 US-DOCS\73274396.2 FOR CITY OF PORT ANGELES: William Bloor City Attorney 338 W. First Street Port Angeles, WA 98362 (360) 417-4530 APPROVED AS TO FORM: COUNSEL FOR CITY OF PORT ANGELES: ____________________________________________ Rod Brown Cascadia Law Group PLLC 1201 Third Ave, Suite 320 Seattle, WA 98101 (206) 292-2605 FOR CITY OF PORT ANGELES: Dan McKeen City Manager 223 East 56 Street Port Angeles, WA 98362 (360) 4r7-4s00 AS TO FORM: E. Bloor City Attomey City of Port Angeles 223 East 5t Street Port Angeles, WA 98362 (360) 4174531 us-Docs\73274396.2 Page 9 of 9