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2011-0942011-94 Resolution Substituting Attorney of Record in Connection with Settlement in Third Party Action Commenced by the City of Newburgh Against the Town of Wappinger At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on February 28, 2011. The meeting was called to order by Christopher Colsey, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Councilmembers ABSENT: Christopher J. Colsey William H. Beale Vincent F. Bettina Ismay Czarnecki Joseph P. Paoloni (arrived at 8:13pm) The following Resolution was introduced by Councilman Beale and seconded by Councilman Bettina. WHEREAS, by Resolution 2011-53, adopted by the Town Board on January 24, 2011, the Town Board authorized settlement of an action commenced by the City of Newburgh, as Third Party Plaintiff, against the Town of Wappinger, in connection with claims arising out of the Consolidated Iron Super Fund Site in Newburgh, New York, and authorized the Supervisor and/or Attorney to enter into a Settlement Agreement; and WHEREAS, since the Resolution was approved by the Town Board, the firm of Wagstaff & Cartmell, LLP, was substituted for the firm of Zarin & Steinmetz as the attorneys of record to receive the settlement proceeds. NOW, THEREFORE, BE IT RESOLVED, as follows: 1. The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. 2. The Town Board acknowledges that the firm of Zarin & Steinmetz has been substituted as the attorneys of record in place of Wagstaff & Cartmell, LLP. The firm of Zarin & Steinmetz is designated as the attorneys to receive the proceeds of settlement and the attorneys of record for the Plaintiff that will execute the Settlement Agreement Between Consolidated Iron Joint Defense Group and Town of Wappinger, New York, for the Consolidated Iron and Metal Superfund Site, a copy of which is affixed hereto. 3. Christopher J. Colsey, Supervisor, and Albert P. Roberts, Attorney to the Town, are hereby authorized to enter into the above mentioned Settlement Agreement in substantially the same form as attached hereto, together with such other documents as may be necessary to fully settle and resolve all claims against the Town of Wappinger as set forth in the Settlement Agreement. The foregoing was put to a vote which resulted as follows: CHRISTOPHER COLSEY, SUPERVISOR Voting: AYE WILLIAM H. BEALE, COUNCILMAN Voting: AYE VINCENT F. BETTINA, COUNCILMAN Voting: AYE ISMAY CZARNIECKI, COUNCILWOMAN Voting: AYE JOSEPH P. PAOLONI, COUNCILMAN Voting: AYE Dated: Wappingers Falls, New York 2/28/2011 The Resolution is hereby duly declared adopted. INN C. INASTERSON, TOWN CLERK SETTLEMENT AGREEMENT BETWEEN CONSOLIDATED IRON JOINT DEFENSE GROUP AND TOWN OF WAPPINGER, NEW YORK FOR THE CONSOLIDATED IRON AND METAL SUPERFUND SITE This agreement is made as of the date stated on the Execution Page between and among the parties (individually "Settling Party"; collectively "Settling Parties") whose authorized representatives have executed counterparts of this agreement (hereinafter "Settlement Agreement"). WHEREAS, the Consolidated Iron Joint Defense Group ("Consolidated Iron JDG") has resolved the United States' claims for response costs at the Consolidated Iron and Metal Superfund Site ("Site"), which agreement is embodied in a consent decree which has been lodged and has or will be entered in the United States District Court for the Southern District of New York in the case styled United States v. City of Newburgh., et al., No. 08 Civ. 7378 (S.D.N.Y.) ("Consolidated Iron Consent Decree"); WHEREAS, the Consolidated Iron JDG has asserted CERCLA cost -recovery and contribution claims against the Town of Wappinger, New York ("Town of Wappinger") seeking the recovery of past and future response costs with respect to the Site; WHEREAS, Town of Wappinger, pursuant to this Settlement Agreement, is paying a fixed and specific sum to settle with the Consolidated Iron JDG and become a signatory to the Consolidated Iron Consent Decree (or future settlement with the United States) to fully and completely settle its potential liability for Settled Claims at the Site; and WHEREAS, the Settling Parties deny all liability at the Site. NOW, THEREFORE, in consideration of the foregoing, the Settling Parties mutually agree as follows: 1. Definitions. As used in this Settlement Agreement, all defined terms shall have the meanings set forth below: 1.1 Consolidated Iron JDG shall mean the City of Newburgh, the City of Poughkeepsie, Northrop Grumman Ship Systems, Inc., and Connell Limited Partnership, and each of their respective owners, shareholders, officers, directors, employees, affiliates, parents, subsidiaries, successors, predecessors, agents, and assigns, whether pursuant to contract, by operation of law, or otherwise; in their own right, and as assignees of claims by all other entities who have settled and assigned (or will settle and assign) their Site claims to the Consolidated Iron JDG; 1.2 Consolidated Iron Consent Decree shall mean the consent decree entered into with the United States related to its claims for response costs at the Site which has been lodged and has or will be entered in the United States District Court for the Southern District of New York in the case styled United States v. City of Newburgh, et al., No. 08 Civ. 7378 (S.D.N.Y.); 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 Town of Wappinger shall mean the Town of Wappinger, New York including without limitation its past, present and future boards, bureaus, departments, agencies, instrumentalities, districts, authorities, officers, directors, members, employees, successors, predecessors, agents, and assigns, whether pursuant to election, appointment, contract, by operation of law, or otherwise; 1.5 Settled Claims shall have the same meaning as the "Matters Addressed" contained in the Consolidated Iron Consent Decree and otherwise specified in the Consent Decree, and shall not include: Agreement; (a) any claim or liability relating to the enforcement of this Settlement (b) criminal liability; (c) liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments; (d) liability of the Settling Parties based upon their ownership or operation of the Site or their transportation, treatment, storage, or disposal, or arrangement for the transportation, treatment, storage, or disposal, of a hazardous substance, pollutant, contaminant or solid waste at or in connection with the Site, after signature of this Settlement Agreement; and (e) liability arising from the past, present, or future disposal, discharge, release or threat of release of a hazardous substance, pollutant, contaminant or solid waste outside the Site; 1.6 Settlement Amount shall mean that total amount listed in Section 4.1 which has been agreed upon between the Consolidated Iron JDG and Town of Wappinger to fully resolve Town of Wappinger's liability with respect to Settled Claims at the Site; 1.7 Settling Parties shall mean the Consolidated Iron JDG and Town of Wappinger; 1.8 Site shall mean the Consolidated Iron and Metal Superfund Site located in the City of Newburgh, Orange County, New York, and all areas and media impacted by releases at or from the Site. 2 2/8/2011 2. Purpose. The terms of this Settlement Agreement shall control the manner and means by which the Settling Parties will settle claims and causes of action by and among each other at the Site pursuant to CERCLA as to Settled Claims. 3. Nature of Settlement Agreement. The Settling Parties acknowledge that the consideration tendered and received herein, the promises, undertakings and agreements made, and the execution of this Settlement Agreement, are in compromise and settlement of disputed claims and are not admissions of liability on the part of any of them, and that each of the Settling Parties is willing to perform its obligations hereunder for the purpose of resolving their differences and to avoid the burden and expense of protracted litigation relating to the Settled Claims. Neither this Settlement Agreement, nor any performance hereunder by any Settling Party, shall create any rights on behalf of any other person or entity not a party hereto. Notwithstanding the foregoing, this Settlement Agreement shall be fully admissible in any proceeding to enforce the Settling Parties' rights and obligations hereunder. Nothing herein shall be deemed to create a partnership or joint venture and/or principal and agent relationship between or among the Settling Parties. 4. Payment by Town of Wappinger and Addition to Consolidated Iron Consent Decree, 4.1 Payment by Town of Wappinger. In settlement of the Settled Claims, and in consideration of the mutual undertakings and benefits in this Settlement Agreement, Town of Wappinger shall pay the Consolidated Iron JDG the sum of Ten - Thousand Four -Hundred Fifty and No/100 Dollars ($10,450) ("Settlement Amount"). Payment of the Settlement Amount shall be in U.S. Dollars by checks made payable to "Zarin & Steinmetz, as Escrow Agent" with the words "Consolidated Iron Escrow Account" in the memorandum line and must be received by Gary D. Justis, The Justis Law Firm LLC, 7300 W. 11 01h St., Suite 700, Overland Park, KS 66210-2332, by Marc 4, 2011, 4.2 Payment Not Penalty. The payment made by Town of Wappinger is intended by the Consolidated Iron JDG to represent Town of Wappinger's alleged allocable share of Site response costs and an additional amount for orphan shares. Such payment by Town of Wappinger is not a penalty or monetary sanction. 4.3 Addition of Town of Wappinger to Consolidated Iron Consent Decree. Town of Wappinger shall also execute a signature page to the Consolidated Iron Consent Decree (attached as Exhibit A). The Consolidated Iron JDG will forward Town of Wappinger's executed Consolidated Iron Consent Decree signature page to the United States and shall use its best good -faith efforts to convince the United States to add Town of Wappinger as a signatory and "Other Settling Party" to the Consolidated Iron Consent Decree (or future settlement with the United States). Town of Wappinger's Settlement Amount will be held the Consolidated Iron Escrow Account until Town of Wappinger is 2/8/2011 added as a signatory to the Consolidated Iron Consent Decree (or future settlement with the United States). Upon the addition of Town of Wappinger to the Consolidated Iron Consent Decree (or future settlement with the United States), Fifty Percent to Eighty Percent (50% to 80%) of the Net Settlement Proceeds (as defined in the Consolidated Iron Consent Decree) will be paid to the United States as outlined in the Consolidated Iron Consent Decree. 5. Releases, Assignments, and Covenants Not to Sue. 5.1 Releases by and among the Settling Parties. Subject to the remaining provisions of this Section 5, in consideration of the mutual undertakings and benefits in this Settlement Agreement, the Consolidated Iron JDG, each individually on the one hand, and Town of Wappinger, on the other hand, release and forever discharge each other from all Settled Claims. 5.2 Effectiveness of Release. Subject to Section 14 herein, the release in Section 5.1 will be effective after all of the following occur: (a) the Consolidated Iron JDG's receipt of Town of Wappinger's full payment under Section 4.1 above; (b) the Consolidated Iron JDG's receipt of Town of Wappinger's signature page to this Settlement Agreement and the Consolidated Iron Consent Decree under Section 4.3 above; and (c) the addition of Town of Wappinger as a signatory to the Consolidated Iron Consent Decree (or a future settlement with the United States). 5.3 Reservations and Limitations. In construing the scope of the releases granted in Section 5.1 above, the following reservations and limitations shall apply: (a) Nothing in this Settlement Agreement is intended to release the joint and several liability relating in any way to the Site of any person or private or public entity which is not a Settling Party under this Settlement Agreement. (b) The Settling Parties agree that compliance with the terms of this Settlement Agreement and related agreements shall satisfy the claims of the Settling Parties against one another only for Settled Claims and that the Consolidated Iron JDG intends to reserve and pursue all claims and actions against parties who are not a Settling Parry, including without limitation, all claims and actions assigned by Town of Wappinger pursuant to this Settlement Agreement, and all other parties pursuant to other agreements. (c) Town of Wappinger agrees that it is accepting responsibility for, and settling for, only the persons and entities included in the definition of Town of Wappinger. 5.4 Covenant Not to Sue. In consideration of the mutual undertakings and benefits in this Settlement Agreement, the Settling Parties covenant not to sue each other or any other party, or its respective owners, shareholders, officers, directors, employees, affiliates, parents, subsidiaries, successors, predecessors, agents and 4 2/8/2011 assigns, whether pursuant to contract, by operation of law or otherwise, who settles with the Consolidated Iron JDG with respect to the Settled Claims. 5.5 Assignments. In consideration of the mutual undertakings and benefits in this Settlement Agreement, Town of Wappinger hereby assigns to the Consolidated Iron JDG any and all .claims, defenses and remedies of Town of Wappinger against any other persons or public or private entities arising out of Settled Claims, except for past, present or future claims against any person or entity relating to insurance coverage or for contractual indemnity with respect to Town of Wappinger's alleged liability with respect to the Site, and except for claims arising out of any failure, alleged or actual, of the Consolidated Iron JDG to comply with the terms of the Consolidated Iron Consent Decree or this Settlement Agreement. The Settling Parties intend through this assignment to enable the Consolidated Iron JDG to recover fully as allowed by law against such -parties. Town of Wappinger agrees to provide such reasonable cooperation and assistance to the Consolidated Iron JDG as is reasonably necessary to effectuate the intent of this Section 5.5. Town of Wappinger shall neither have nor incur litigation costs and attorneys' fees regarding the assigned claims, nor share in any contribution recoveries under this Section 5.5. 5.6 Claims or Actions. Cost recovery or contribution claims may only be asserted and actions relating to the Site for cost recovery or contribution may only be filed by the Consolidated Iron JDG, who may seek to recover such response costs from persons or private or public entities believed to be parties liable at the Site pursuant to 42 U.S.C. §§ 9607(a) or 9613. 6. Confidentiality of this Settlement Agreement and Shared Information (a) Each Settling Party agrees that this Settlement Agreement, its terms, and all shared information received from any other Settling Party or its counsel, technical consultants, or counsel pursuant to this Settlement Agreement, shall be held in strict confidence by the receiving Settling Party and by all persons to whom confidential information is revealed by the receiving Settling Party pursuant to this Settlement Agreement, and that this Settlement Agreement, its terms, and such shared information shall be used only in connection with conducting such activities as are necessary and proper to carry out the purposes of this Settlement Agreement, or, as necessary, during negotiations with the United States with respect to the Consolidated Iron Consent Decree. (b) If the terms of this Settlement Agreement or such shared information becomes the subject of an administrative or judicial requirement or order requiring disclosure of such information by a Settling Party, where the information will be unprotected by confidentiality obligations, the Settling Party subject to such requirement or order may satisfy its confidentiality obligations hereunder by notifying the other Settling Party. (c) Each Settling Party shall take all necessary and appropriate measures to ensure that any person or private or public entity that is granted access to the terms of this Settlement Agreement or any shared information or that participates in work 5 2/8/2011 on common projects or who otherwise assists any counsel or technical consultant in connection with this Settlement Agreement, is familiar with the terms of this Settlement Agreement and complies with such terms as they relate to the duties of such person. (d) The Settling Parties intend by this Section 6 to protect from disclosure the terms of this Settlement Agreement and all confidential information and documents shared among any Settling Parties or between any Settling Party and counsel retained by the Consolidated Iron JDG or any technical consultant to the greatest extent permitted by law regardless of whether the sharing occurred before execution of this Settlement Agreement and regardless of whether the writing or document is marked "Confidential." (e) The confidentiality obligations of the Settling Parties under this Section 6 shall remain in full force and effect, without regard to whether actions arising out of the Site are terminated by final judgment, and shall survive any termination of this Settlement Agreement. The provisions of this Section 6 shall not apply to information which is now or hereafter becomes public knowledge without violation of this Settlement Agreement, which is sought and obtained from a Settling Party pursuant to applicable discovery procedures and not otherwise protected from disclosure or which is required to be disclosed pursuant to any applicable open records law. (f) Information subject to the confidentiality provisions of this Section 6 shall be governed for purposes of admissibility in any later litigation by Rule 408 of the Federal Rules of Evidence. Each Settling Party agrees that the purposes of the confidentiality provisions are to prevent dissemination of the terms of this Settlement Agreement and shared information to persons who are not parties to this Settlement Agreement and to restrict the admissibility of this Settlement Agreement and shared information. Each Settling Party further agrees that the receipt and knowledge of the terms of this Settlement Agreement or any shared information pursuant to this Settlement Agreement shall not be the basis for disqualification of any person from participation in any subsequent administrative or legal proceeding, including litigation for recovery of response costs. (g) Nothing in this Section 6 is intended to prohibit the sharing of information with a Settling Party's insurers for the purpose of obtaining coverage for a Settling Party's costs. All information provided to an insurer is subject to the confidentiality provisions of this Section 6. 7. Denial of Liability and Reservation of Rights. Except as expressly provided by the terms of this Settlement Agreement, this Settlement Agreement shall not constitute, be interpreted, construed or used as evidence of any admission of fact, law, responsibility, liability or fault, a waiver or release of any right or defense not specifically enumerated, or an estoppel against any Settling Party, by Settling Parties as among themselves, or by any other person not a Settling Party. 6 2/8/2011 8. Insurance. The Settling Parties do not intend hereby to make any Settlement Agreement that will prejudice any Settling Party with respect to its insurers and, by entering into this Settlement Agreement, anticipate that the actions taken pursuant to this Settlement Agreement will benefit such insurers. If any insurer makes any claim that any aspect of this Settlement Agreement provides a basis for rejection or limitation of coverage of a Settling Party, the Consolidated Iron JDG will attempt, consistent with the settlement reflected in this Settlement Agreement and related documents, to return any Settling Party subject to such claim to a position that is satisfactory to such insurers. 9. Successors and Assigns. This Settlement Agreement shall be binding upon the successors and assigns of the Settling Parties. No assignment or delegation by a Settling Party of its obligations under this Settlement Agreement or of this Settlement Agreement will release the assigning Settling Party without the prior written consent of the other Settling Party. 10. Advice of Counsel. No Settling Party, or representative or counsel for any Settling Party, has acted as counsel for any other Settling Party with respect to such Settling Party entering into this Settlement Agreement, except as expressly engaged by such Settling Party with respect to this Settlement Agreement, and each Settling Party represents that it has sought and obtained any appropriate legal advice it deems necessary prior to entering into this Settlement Agreement. 11. Necessary Authorizations. The Settling Parties warrant to each other that all necessary authorizations and all other actions have been taken such that execution, delivery and performance of this Settlement Agreement and all other actions taken or to be taken in connection with this Settlement Agreement have been fully authorized. 12. Notice. All communications to each Settling Party shall be sent to the respective Settling Party's designated representative as set forth on the Execution Page. 13. Effective Date. The effective date of this Settlement Agreement shall be the date upon which Town of Wappinger executes the Settlement Agreement as noted on the Execution Page. 14. Termination. This Settlement Agreement shall terminate only upon the United States' final determination that it will not add Town of Wappinger as a 7 2/8/2011 signatory to the Consolidated Iron Consent Decree (or a future settlement with the United States). In the event of such a determination, as set forth in the preceding sentence, Town of Wappinger shall be entitled to terminate this Settlement Agreement and receive a full refund of its Settlement Amount from the Consolidated Iron Escrow Account within sixty (60) days of such determination, and the releases set forth in Section 5.1 above shall be null and void and of no further effect. 15. Amendments. No amendment, waiver of compliance with any provision or condition hereof, or consent pursuant to this Settlement Agreement will be effective unless evidenced by an instrument in writing signed by the Settling Party against whom enforcement of such amendment, waiver or consent is sought. 16. Separability. If any provision of this Settlement Agreement is deemed invalid or unenforceable, the balance of this Settlement Agreement shall remain in full force and effect. 17. Survival of Representations, Warranties and Covenants. The representations, warranties and covenants contained herein are and will be deemed and construed to be continuing representations, warranties and covenants, and will survive the dates of execution of this Settlement Agreement, 18. Separate Documents. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 19. Applicable Law. For purposes of enforcement or interpretation of the provisions of this Settlement Agreement, the Settling Parties agree that the laws of the State of New York shall be applicable, except to the extent the Settling Parties agree, or a court determines federal law applies to questions arising under CERCLA. The Settling Parties further agree not to contest personal jurisdiction in any New York court of law with respect to litigation brought for such purposes. 20. Entire Agreement. This Settlement Agreement embodies the entire agreement and understanding of the Settling Parties with respect to the subject matter herein, and supersedes any and all prior agreements, arrangements and understandings entered into with respect to the subject matter herein. This Section 20 is the last section of this Settlement Agreement. 8 2/8!2011 SETTLEMENT AGREEMENT BETWEEN CONSOLIDATED IRON JOINT DEFENSE GROUP AND TOWN OF WAPPINGER, NEW YORK FOR THE CONSOLIDATED IRON AND METAL SUPERFUND SITE EXECUTION PAGE IN WITNESS WHEREOF, the Settling Parties hereto enter into this Settlement Agreement. Each person signing this Settlement Agreement represents and warrants that he or she has been duly authorized to enter into this Settlement Agreement by the Settling Party or entity on whose behalf it is indicated that the person is signing. Consolidated Iro int fense Group By: -~ ary Authorized Signatory Authorized Representative for Notice: Gary D. Justis The Justis Law Firm LLC 7300 W. 110'x' St. Suite 700 Overland Park, KS 66210-2332 Town of Wappinger, New York �0 Authorized Representative for Notice: Albert P. Roberts, Esq. Vergilis Stenger Roberts Davis Diamond, LLP 1136 Route 9 Suite 2 Wappingers Falls, NY 12590 9 2/8/2011 Dated: a' Dated: THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v. City of Newburgh, et al. relating to the Consolidated Iron and Metal Co. Superfund Site. Date: FOR OTHER SETTLING PARTY TOWN OF WAPPINGER, NEW YORK Name: Title: Address: Agent Authorized to Accept Service on Behalf of Above -Signed Party: Albert P. Roberts, Esq. Vergilis Stenger Roberts Davis Diamond, LLP 1136 Route 9 Suite 2 Wappingers Falls, NY 12590