96-1013 �� � ` � I �� `� � Council File # � -' v \3
f i ��
Green Sheet # 3 y �.3 '�
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA 1 Q
l (
Presented By
Referred To Committee: Date
1
2
3
4
5 WHEREAS, the City of Saint Paul has been named by the Minnesota Pollution Control
6 Agency as a responsible party for the Schnitzer Iron and Metal Site, which is on the
7 Permanent List of Priorities (Minnesota Superfund); and
8
9 WHEREAS, a number of other responsible parties for this site have formed a group for the
10 purposes of effectively responding in a cost-efficient manner; and
11
12 WHEREAS, these responsible parties have entered into the "SCHNITZER IRON AND
13 METAL MERLA SITE GROUP AGREEMENT," a copy of which is attached hereto, which
14 provides for cost sharing, site remediation, and pursuing contribution from additional
15 responsible parties; and
16
17 WHEREAS, the City of Saint Paul would benefit from participating in this group.
18
19 NOW THEREFORE, BE IT RESOLVED, that the Mayor and the Director of Finance and
20 Management Services are hereby directed to execute the "SCHIVITZER IRON AND METAL
21 MERLA SITE GROUP AGREEMENT," a copy of which is attached hereto, on behalf of the
22 City of Saint Paul; and
23
24 BE IT FURTHER RESOLVED, that costs incurred under this agreement, up to $50,000.00
25 (fifty thousand dollars) be paid from account: C F' �(b q3�
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Yeas Navs Absen Requested by Department of:
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Adopted by Council• Date Form Apprp d by City Attorney
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Adoption Certified by Council Secretary By:
BY' �— � - � Approved by Mayor for Submission to
Approved by Mayor: Date �(, Council
By. G�,, CG � By: /�/` C�.
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IL DATE INITIATED N_ 3 4 2 3 3
Real Estate �1���6 �REEN SHEET ___ _ . __
�' DEPARTMENT DIREC70R N m A W�1 1 T E CITY COUNCIL I N I T I A L/D A T E
Susan Ode 266-6601 �ss�p �CITlATTORNEY �CITYCLERK
N Il 8Y(DA p��� UDOET DIRECTOR ' �FIN.d MOT.SERVICES DIfl.
�/�O OIIDEII , MAVOR(OFi A8818T
TOTA!#E OF 81(iNATURE R11OES (CLIP ALL LOCATIONS FOR SIQNATUR�
ACTION AEOUEBTED: AUG �L i!!6
Approval of resolution authorizing execution of �
Schnitzer Iron and metal Co. site group agreement. MAYOR'S OFFtCE
RECOMMENDATIONS:Approve(A)a Ry�ct(q) PERSONAI 8ERVIC@ CONTRACTS MUST ANSWEp THE FOLLOWING QUESTIONB:
_PLANNINO COAMd18810P1 _..CIVIL SERVICE COMMI8810N 7. Has ihfs psrsoMhm evsr worked under a c�ntrect Mr ihis d�parbnsM? -
_CIB COMMITTEE _ YES NO
2. Ha8 this psreoNfirtn e�rer been a city employee,9
—$� — YE3 NO
_DI8TRICT COURT _ 3. Does this person/(i►m poasess a akill not normallY Po��bY�Y���Y��
BuPPORTS 1nmu�l COUWCq.oe,lECTrvE9 YE3 NO
Expiain sil y��ensw�n on ssperat�sM�t�nd�eh to pn�n sM�t
. �anu►rxro rAOe�,�ssue.o�'uamr�wra.wnn.wr�+,wner.,whr>:
See attachmenr
The City of Saint Paul is a potentially responsible party for lead and PCB
contamination at the farmer site of the Schnitzer Iron and M:etal Co. The
primarq PRPs have formed a group to resolve clean up issues.
ADVMITAOEB IF APPRONED:
See attacHment
Response to the Minnesota Pollution Control Agency can be done in the most
efficient manner and most cost effective manner. �� �8�� ��
DISADVANTAOES IFAPPROVED:
See attachment
Disadvantages are unlikely in that the City is responsible €or clean up of the
site.
asnov�►rrr�s�ra�r�novEO:
See attachment
The City would expend more funds acting unilaterlly. By cooperating with other
PRPs, the City retains more voice in ma.nner and cost of site remediation. This a
TOTAL AMOUNT OF TRAt�ACTION = 5O�OOO tOt81 COST/REVENUE BUDQETEO(CIRCLE ONE) YES NO
FUNDINO SOURCE �'F !67�� eO� ACTIVITY NUMaEii Q��u
FINANCIAL INFORMATION:(EXPLAIN) ��f� !� ������ I�/�
• f
Council File /
Green Sheet #34233 � b- I b 13
The attached resolution authorizes the execution of an agreement to join with other parties
responsible for contamination of the former Schnitzer Iron and Metal Co. property at 2703
Territorial Road. On August 14, 1996 the City Council created account 001-09055 to go toward
funding environmental clean up. The 1996 amended budget includes $13,000 for clean up at the
Schnitzer site. Additional funding up to the $50,000 maximum total for the Responsible Party
group agreement would come from the 1997 budget.
INITIATING PROBLEM, ISSUE, OPPORTUNITY
The Schnitzer Iron and Metal Co. Site in Saint Paul is on the Minnesota List of Priorities,
otherwise known as the State Superfund List. The site is owned by the University of Minnesota
and is in both Saint Paul and Minneapolis. Clean-up cost estimates range from approximately
$2,000,000 to $5,600,000, depending on the clean-up level. The clean-up level is tied to the
ultimate use of the property. It is possible to clean the site to a level that protects public health
and the environment and yet restricts future development of the site.
The site is contaminated with lead and PCBs. The Minnesota Pollution Control Agency(MI'CA)
has receipts from the Schnitzer Co. indicating that the City of Saint Paul disposed of 9,300
pounds batteries and bullet lead at the site out of a total of more than 330,000 pounds of lead.
Disposal of a�lead on the site makes the City (or other responsible party) potentially liable for
the entire cost of clean-up. In the typical process, through voluntary efforts or through litigation,
responsible parties allocate the clean-up costs proportionately to their relative contribution to the
contamination. In this case, the City has contributed approximately 2.8% of the lead known to
have been delivered to the site. Thus, the City could reasonably expect a liability of$456,000 to
$168,000, although the cost could be more or less than that range.
The City of Saint Paul has been asked to join a group of other Responsible Parties, including Ford
Motor, Onan Corporation, the City of Minneapolis and many others, to respond to the MPCA.
The group will retain common legal counsel, retain technical consultants, pursue additional
responsible parties, implement remediation, and take all necessary and reasonable actions to
accomplish these purposes. The group will also raise and spend all reasonably necessary funds to
implement these purposes.
A member is free to leave the group at any time. A withdrawing member would be liable for its
share of costs incurred and approved to the withdrawal point, but not for costs incurred after
withdrawal from the group. The City Attorney's Office recommends limiting participation to
$50,000 at this point. If that limit is reached, the City can re-evaluate and determine whether
further participation is prudent.
ADVANTAGES IF APPROVED
As a Responsible Party, the City is ultimately obligated to contribute to the clean-up costs. The
benefit of joining the Responsible Party group would be that response to the MPCA could be
done in the most cost efficient manner taking advantage of group investigation. The City would
have access to all investigation and advice of group counsel as well as the opportunity to interact
with and influence the other responsible parties. As a member of the group, the City of Saint Paul
would have input into remediation level and therefore eventual use of the site. This is particularly
important at the Schnitzer site because of the economic development potential.
Council File
Green Sheet #34233 C,� � _ I ���
Page 2
The City's action to respond as a Responsible Party is independent of economic development
discussions regarding the Schnitzer site because the City's liability for the site continues until the
property is remediated and the City is indemnified by the MPCA or other party. Therefore
approval of this resolution is needed independent of discussion of the possible purchase of the
property because Responsible Party investigation is ongoing and concurrent with current
economic development discussions involving the University of Minnesota and Hubbard
Broadcasting.
DISADVANTAGES IF APPROVED
The City agrees to pay a portion of group costs. This is a minor disadvantage because the City is
in any event liable for clean up of the site under Minnesota law.
DISADVANTAGES IF NOT APPROVED
The City have to independently investigate clean up options and attempt to determine the City's
share through litigation rather than cooperative effort. The City would have to negotiate or
litigate the matter in order to fulfill its responsibility independently at a higher cost than it would
incur if it pursues resolution cooperatively.
August 20,1996
♦
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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 ("Members") so
as to establish a cooperative working group with respect to the Schnitzer Iron and
Metal Minnesota Environmental Response and Liability Act ("MERLA"1 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 Grou�. 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;
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(c) pursue information linking additional parties to the Site as
Responsible Parties ("RP's"1;
(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 Authoritv 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
pu�pose, 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 Makin4. 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
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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
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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 inembers 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.
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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 Votinq• 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.
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5. Shared costs.
5.1 Pavments. 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
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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
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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 inembership 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 Confidentialitv 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
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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
no 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
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originally provided the Shared Information and atl
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 carrierls).
(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 Liabilitv
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.
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The Members do not intend hereby to make any agreement that wiil ---
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.
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The terms of this Section shall survive the termination of the
Agreement and the withdrawat 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 Riqhts 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,
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nothing contained herein shali 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 Leqai Counsel. If the Group selects and retains legat 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 conftict 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 (201 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
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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 retating 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 consuttant 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 adoqtion of such amendment is mailed to
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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
Iaw.
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
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q (�- l b 1'3
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:
Date:
By:
(Name and Title)
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Y
� �, - �t�\3
Designated Representative for Receipt of Notice and Invoices:
NAME:
ADDRESS:
TELEPHONE NUMBER:
FACSIMILE NUMBER:
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� 1v- ����,5
SCHNITZER IRON AND METAL MERLA GROUP PROXY
I, the duly authorized representative of
(hereinafter the "Member") do hereby grant the Proxy of the Member to
for the
,
meeting to be held on the day of ;
is hereby authorized and empowered
to vote for said Member and in said Member's name and stead at such meeting
(and at any adjournment thereof) on any issue, except for those issues listed
below, put to a vote in accordance with the Schnitzer Site Agreement. For those
issues noted below, has no authority on behalf of
the Member and must abstain from voting on the Member's behalf.
Member:
Date:
By:
(Name and Title)
Issues for which this proxy is granted;
1 .
2.
3.
Issues for which this proxy is not granted:
1 .
2.
3.
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