HomeMy WebLinkAbout001169 Original Contract City of Port Angeies
Record#001169
MEDIATION AGREEMENT
WESTERN PORTANGUES HARBOR.,PORT' ANGELES,WASUINGTON
October 2016
E. Recitals:
(a) In 2008, the Washington State Department of Ecology ("Ecology") initiated an
investigation of environmental contarnination in marine sediments in and around Western Port
Angeles Flarbor (the "Site"), an area more particularly described in the Site Diagrarn attached
hereto as F'xhibit "A," This statc investigation resulted in the identification of various
Potentially Liable parties(""PIPs""').
(b) On May 28, 2013, Fcology entered into an Agreed Order (No. DE 978 1) with the
following five PLJ)s to conduct a Remedial Investigation and Feasibility Study ("RI/FS"") at the
Site in accordance with the Model'roxics Control Act, RCW 0.105D ("MTCA"): (1)Georgia-
Pacific IA,C;(2)Nippon Paper Industries, USA Co., 1,.td,, (3) Merrill & Ring Inc.,(4)Port of Port
Angeles, and (5)City of Port Angeles(collectively, the 1,11,11 Group").
(c) Ecology determined that Owens Corning is a PLP fbi- the Site. The 111.11 Group
contends that it has MTC A contribution clainis against Owens Corning relating to releases or
threatened releases of hazardous substances at the Site, Owens Corning has not entered the
Agreed Order because it believes any Potential liability has been discharged through a prior
bankruptcy proceeding, [`.cology and the P1.11(3roup dispute Owen Coming's contentions.
NOW, '1111"REFORE, in consideration of the foregoing Recitals, the Parties and
Mediator agree as follows with respect to ongoing disputes arising at the Site. The Pl,P Group,
on the one hand, and Owens Corning, on the other hand, (collectively "Parties") hereby agree to
enter into a process of mediation of those dispute-, set forth in Paragraph 2 below, pursuant to
this Mediation Agreement ("Agreement'). This Agreement sets forth the terms and conditions
pertaining to the mediation process,costs ofthe mediation, and tile confidentiality of information
shared among the Parties and Mediator as part of the mediation process,
2. Scope of Mediation: 1"'he Parties agree to mediate procedures and costs relating to joint
participation ofthe 1111"Group and Owens Coming in the Site's RI/FS process, and other issues
that may arise in the fixture that the Parties agree are, suitable for resolution pursuant to this
Agreement.
3. Parties: The "Parties" to the mediation process shall include C)vverls Corning and the
following members of the PIT Group: (1) Georgia-Pacific LI.,C; (2) Nippon Paper Industries
LISA Co,, I,td., (3) Met-rill & Ring Inc., (4) Port of Port Angeles, and (5) City of"Port Angeles.
Other parties may subsequently be added to this mediation upon the written agreement ot'all the
participating Parties and upon execution ol'an amended mediation agreement.
4. Withdrawal from the Mediation Process: Any Party may withdraw from the mediation
process by providing thirty (3(I) days' advance written notice to the other Parties and the
Mediator and, prior to witlldravving, that Party shall contact the Mediator to discuss the reasons
Aledhilion ,igreepneni Retween(Avens Corrung and the PLP Group Page I
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fior withdrawal, The Effective Date of'withdrawal shall be thirty (30) days after written notice is
served on the other Pat-ties and Mediator, Any Party who withdraws front the mediation process
(I) shall remain bound by the confidentiality provisions of this Agreement; (2) shall within thirty
(30) days of notice cal'withdrawal return to the other Parties and/or the Mediator, as appropriate,
all documents (and all copies of. such documents) received frout the other Party(ies) or the
Mediator during the mediation process, or confirm to the Mediator and the other Parties that all
such documents have been destroyed; and (3) shall remain obligated to pay its share of the costs
of the Mediator pursuant to Paragraph 6 below, up to and including the effective date of'
withdrawal, regardless of such withdrawal. The Parties continuing their participation in the
mediation and the Mediator shall, within thirty (30) days of notice of withdrawal, return to the
withdrawing party all documents (and all copies of such documents) received from the
withdrawing Party during the mediation process, or shall confirm to the Mediator and the
Withdrawing Party that all such documents have been destroyed.
5. Mediator:
(a) The Parties agree, that Stew Cogan, 1420 Fifth Ave., Suite 3400, Seattle, WA
9810 1, shall serve as the Mediator.
(b), Although the Mediator is a lawyer, the Parties agree that the Mediator's role
involves working with all Parties and their lawyers to facilitate a resolution of' disputes.
Accordingly, the Parties agree that the Mediator does not represent any Party (whether as
attorney, advocate, advisor, or in any other connection), there is not an attorney-client
relationship between the Mediator and any of the Parties, and the Parties shall look to their own
lawyers for advice on their legal rights and obligations. The Parties should also look to their own
lawyers for advice concerning any applicable time limitations within which litigation,arbitration,
or other proceeding must be filed or within which any action must be taken in any pending
litigation,arbitration,or other proceeding,
(c) During the term of this Agreement, the Parties agree that the Mediator is not
serving as a judge, arbitrator, or fact-finder, and the Mediator has no authority to impose a result
oil the Parties. The Mediator has no responsibility to prepare or pass upon the s-Lifficiency of any
settlement agreements or other, documents arising from mediated settlement negotiations,, The
Parties agree to obtain the advice of their respective legal counsel belbre signing any document.
(d) All files of the Mediator relating to this matter may be destroyed 90 days
following tire conclusion or tennination of this Agreement, or the conclusion of the Mediator's
work on this matter, if later, The retention or destruction of the files of the Parties shall be
governed by the Public Records Act or the terms of this Agreement.
6. Payment of the Mediator:
(a) Each Party shall bear its own costs, including attorneys' and consultants' fees and
expenses, in connection with the Mediation, including its respective share of the fees and
expenses for the Mediator,
(b) The Mediator's fees for mediation and facilitation services for 2016 shall be $660
per hour, plus reasonable and actual travel expenses.
MedialionAgreement Between(hvens Corning and the I'Ll'Group Page 2
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(e) The Mediator shall provide invoices to the Parties monthly setting forth in
reasonable detail the tirne and costs incurred for purposes of the mediation during that nionth.
Owens Corning shall pay, 50% of the Mediator's fees, costs and expenses, and the PIT Group
sluall in the aggregate pay the other 50%owed (as further allocated by and are the PLP GrOLIP
into pro rata shares). Upayment is not made within 60 days of the receipt ol:. the rnerlialor's
rnonthly statement, interest is chargeable at 10%per month.
(d) Except as otherwise provided in this Agreement, each party to the inediation
process shall pay directly to the Mediator its respective share ffor the cost of the mediation
process, The Parties and the Mediator shall make best efforts to keep the cost of mediation
process fair and reasonable.
(e) The Mediator, at his discretion, will invoice a Party separately for services
1wrfortnedthat are specific to that Party.
7. The Role of the Mediator and Mediation Sessions:
(a) The Mediator shall act as a third-party neutral in a confidential process in, which
the Parties, with the assistance of the Mediator, collaboratively and collectively seek to
(1) identify issues; (2)develop potential alternatives and approaches to resolve those issues;
(d resolve those issues; and (4)achieve an appropriate resolution of matters in dispute. The
Mediator shall assist the Parties to identify and communicate the interests underlying their
dispute and help the Parties develop their collaborative c5orts to resolve outstanding disputes.
(b) Mediation sessions will be scheduled with the Mediator at such tirnes and
locations as the Parties may agree, The Parties intay conduct additional sessions without the
presence of the mediator, or in the presence of' other mediators, if the Parties agree it, will
facilitate or advance the mediation generally, Any and all sessions, meetings and/or
communications (oral or written) by or among the parties and/or their respective counsel which
are in furtherance of', in preparation for, or which facilitate the mediation, regardless of the
tinting of those, sessions, meetings or communications, are an inseparable and an integral part of
the mediation,
8. Confidentiality:
(a) nis mediation agreement and the mediation process set forth in this Agreement
regarding the Site are confidential. Ilie process, including an), documents Prepared in
connection with this mediation and submitted to the Mediator---or documents prepared by the
Mediator-----and any statements made during that process are Lor settlement purposes only, are,
confidential, and shall be treated as compromise negotiations under Rule 408 of the Federal
Rules of" Evidence, RCW 7,07.030, Rule 408 of the Washington Rules of Evidence, and other
applicable law, Unless and to the extent existing law (e.g., Public Records Act) limits the scope
of`confidentiality„ the Parties hereby agree to be bound contractually by the confidentiality terms
of this Agreement. All information provided by a Party to another Patty or the Mediator when
marked or otherwise designated in writing as being suftjcct to this Agreement or for puqx)ses of
this mediation (e g, "Subject to Confidentiality Agreement" or"'For Mediati(ni Purposes") is for
settlement purposes only and shall be considered confidential provided, however, information
Alechation Agreement Between Chverns Corning and the PLP Group Page 3
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that is otherwise publicly available or discoverable or known or available to the Parties, whether
bel'orc or after the e5ective date of this Agreement, shall not be rendered confidential,
inadmissible or non-discoverable because ofits use in this mediation process,
(b) Except as otherwise provided for in this Agreement, the Parties shall not disclose
to any person not the Mediator or a Party to this Agreement, including but not limited to, the
press, any information regarding the substance of the mediation process, including this
Agreement, or the Parties' positions, negotiations, proposals, or settlement offers. Any reports,
writings or documents prepared by a Party's representatives, experts or consultants f,or purposes
cif this mediation, or which in any way recounts or purports to represent settlement proposals in
this mediation in whole or in part, remains confidential and cannot be used for other purposes
against the other Party outside of this mediation process.
(c) No Party may subpoena any documents prepared by or for the Mediator, nor shall
tiny Party subpoena the Mediator to testify as a witness regarding the mediation process. The
Mediator shall not testify on behalf"ofany Party or participate as a consultant or expert in any
federal or state judicial or administrative proceeding regarding the iSSUeS subject to this
mediation or the mediation process.
(d) The confidentiality provisions set forth above shall remain in full force and effect
and Survive the completion or termination of the mediation or this Agreement. Tile
confidentiality provisions set forth above shall also survive and remain in full force and effect
upon any Party that withdraws from the mediation,
(c) The Parties acknowledge that any agreement arnong the Parties that is evidenced
by a record signed by all the Parties, including this Mediation Agreement, may be non-privileged
under RCW 7.07,050(l)(a), and therefore may be considered a public record subject to the public
disclosure requirements under the Public Records Act of the State of Washington, Chapter 42.56
RC W (the "PRA"'). If a request is made to tile City of Port Angeles or the Port of Port Angeles
(the "Releasing Party") for inspection, copying, or both, of any such agreement, the Releasing
Party will notify the other Parties hereto at least 21 days in advance of the release of any Stich
records to the requesting party. If any Party neglects or fails to obtain a court order restraining
disclosure, the Releasing Party will release all records it has determined it must disclose pursuant
to the PRA.
(f) If any Party receives a subpoena that, potentially calls for the production of
documents subject to the confidentiality provisions of this Agreement, the subpoenaed Party
Shall notify all other Parties promptly and with sufficient time to allow the other Parties to review
the subpoena and, if appropriate, seek a protective order,
9. Agreement of the Parties:
(a) No Party or counsel for that Party shall be bound by anything said or done during
the mediation process unless a written settlement is reached, executed, and approved by all the
necessary Parties,counsel,and the appropriate government officials.
(b) The Parties relinquish no claims they may have against any other Party and make
no admission of fact or law, responsibility, lault, or liability by entering into and participating in
Mediation Agreivnent Between Owerts Corning Und the PLP Group Page 4
U1S-D(X'SV;9240378 12
the mediation process, by entering into this Agreement, or by submitting any final agreement for
approval,
(c) In the event that the Parties fail to reach appropriate agreements in the mediation
process, the Parties may request that the Mediator provide the parties with ii brief oral report
detailing the positions of each of' the Parties, and the Mediator's perceived impediments to
achieving agreement. When consensus cannot be, reached, the Parties shall hold a brief
discussion to attempt to identify, the remaining issues. When consensus cannot be reached, the
Parties shall seek to agree upon a description of the remaining issues to be used solely in an
et fort to continue the mediation process.
(d) No party to this Agreement shall initi,,rte any Judicial or quasi-judicial action or
proceeding referring, relating, or arising from any alleged environmental investigation,
contamination, or cleanup at the Site against any other Party before this mediation process is
completed, or before a party withdraws from this mediation process as defined in Section 4 of
this Agreement.
(e) Nothing contained in this Agreement shall be construed to limit (lie authority of'
tiny party to undertake any action pursuant, to applicable law or regulation. This Agreement in
no way affects or relieves any Party of its responsibility to comply with any federal, state, or
local law or regulation. Nothing in this Agreement waives or compromises any rights, claims,
defense, or remedies otherwise available to each Party with respect to any litigation,
10. Miscellaneous:
(a) This Agreement is the complete and exclusive agreement of the Parties hereto
regarding the subject matter of the Agreement. All amendments to this Agreement shall be in
writing and expressly approved by each of the Parties to this Agreement.
(b) This Agreement shall become final and deemed effective once all Parties have
approved it (signature by the appropriate representatives sliall represent approval) and it is signed
by the Mediator,
(c) The descriptive headings of this Agreement are included for convenience only
and shall not affiect the interpretation of any provision herein.
(d) The provisions of this Agreement shall apply to and be binding upon each Party to
the mediation process, its officers, agents, eniployees, successors and assigns, and any person
acting on its behalf.
(e) 'Fhc Parties and Mediator agree, that this Agreement shall, be governed by
Washington law.
(1) This Agreement may be executed in one or marc counterparts,each of which shall
be deemed ,.in original, but all of which shall constitute one institiment.
(g) The Mediator and each of the undersigned representatives of the Parties to the
mediation process attest that cacti representative is authorized to execute and bind that Party to
Afechation Agreement Betiveert Owens Corning and the PLP Group Page 5
US-D(K'SVI9240379 12
this Agreement. By slgnatUre below, the Mediator and each representative acknowledge e that
they have read, understand and agree to this Agreement.
Mediation Agreement Retw^creat(A,ens Corning and the PLP Group Page 6
FOR THE MEDIATOR:
2016
Stew Cogan
1420 Fifth.Ari enue, Suite 3400
Seattle, WA 98101
(206) 860-1000
AlediationAgreement Behiven Owens Corning and the PLP Group 'age, 7
US-DOCS09240378 12
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FOR; WEN ORN1
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Paul Lewandowski
Director, Regulatory Law
I Owens Corning Pk,wy
'Foledo,OH 43659
(419)248-8000
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Mediation Agrawient Between Owens C'oroiowwg
and the LP Group Page
FOR GEORGIA-l"likCIFIC LLC.-
2016
v re `
153 P Dire Street 'NE
AtIonta, GA 30303
(4(")4)652-5054
dt tedi xtion Agreement Between Oi�s,e s Confing and the to y Group large
lJS-DOCS'J 9240378.12
FOR NIPPON PAPER INDUSTRIES USA CO., LTII�
Oc ober
t 2016
Steve Johr6on
Vice President - 1111 and Power Manager
11.0. Box 271
Poz i Angeles, WA 98362
(360)565-7043
Mediation Agreemeni Between Chvens Corning and the PLP Group Page 10
US-DOCNV39240378,12
FOR MERRILL, & RING INC,:
2016
Non-n Schaaf
Vice President
9 13 E 8'11 Street
Port Angeles, WA 98362
(360)452-2367
Mediation Agreement Between 0,vens Corning and the PLP Group Page 11
US-DOCSV39240.378 12
, 2016
r Karen Cjos�� Ile_
Executive Director
338 W. 1"`irt Street
Poil Angeles, WA 98362
(310.)4 7-1138
Mediation Agreement Between Owens Corning and the PLP Group Page 12
FOR CITY OF PORTANGELES:
C 2016
Dan McKeen
City Manager
P.O. Box 1150
PortAngdes, WA 98362
(360)4174500
Mediation Agreement Between Owens Corning anti the PLP Group Page 13
DC"A'240378 12
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