HomeMy WebLinkAboutTolling Agreement-8/24/2015FIFTH TOLLING AGREEMENT FOR CLAIMS UNDER CLEAN WATER ACT
RELATING TO CITY OF WATERLOO'S SANITARY SEWER SYSTEM
The United States, on behalf of the United States Environmental Protection
Agency, contends that it has a cause of action under the Clean Water Act, 33 U.S.C. § 1251 et
seq., against the City of Waterloo, lowa ("Waterloo"), for, inter alia, failure to meet the
conditions of its National Pollutant Discharge Elimination System ("NPDES") permit and the
Clean Water Act in the operation and maintenance of its sanitary sewer system (the "Tolled
Claims").
The United States and Waterloo ("Parties") enter into this Tolling Agreement to
facilitate settlement negotiations between the Parties within the time period provided by this
Agreement, without thereby altering the claims or defenses available to any Party hereto, except
as specifically provided herein.
The Parties, in consideration of the covenants set out herein, agree as follows:
1. Notwithstanding any other provision of this Tolling Agreement, the
period commencing on March 1, 2013, and ending on October 31, 2015, inclusive (the "Tolling
Period"), shall not be included in computing the running of any statute of limitations potentially
applicable to any action brought by the United States on the Tolled Claims.
2. Any defenses of laches, estoppel, or waiver, or other similar equitable
defenses based upon the running or expiration of any time period shall not include the Tolling
Period for the Tolled Claims.
3. Waterloo shall not assert, plead, or raise against the United States in any
fashion, whether by answer, motion or otherwise, any defense of laches, estoppel, or waiver, or
other similar equitable defense based on the running of any statute of limitations or the passage
of time during the Tolling Period in any action brought on the Tolled CIaims.
4. This Tolling Agreement does not constitute any admission or
acknowledgment of any fact, conclusion of law, or liability by any Party to this Tolling
Agreement. Nor does this Tolling Agreement constitute any admission or acknowledgment on
the part of the United States that any statute of limitations, or similar defense concerning the
timeliness of commencing a civil action, is applicable to the Tolled Claims. The United States
reserves the right to assert that no statute of limitations applies to any of the Tolled Claims and
that no other defense based upon the timeliness of commencing a civil action is applicable.
5. This Tolling Agreement may not be modified except in a writing signed
by both Parties. The Parties acknowledge that this Tolling Agreement may be extended for
such period of time as the Parties agree to in writing.
6. It is understood that the United States may terminate settlement
negotiations and commence suit at any time, upon provision of written notice to Waterloo.
Where the United States elects to terminate negotiations under this Paragraph, the Tolling Period
shall continue for the duration set forth in Paragraph 1. Nothing herein shall preclude the
commencement of any action by the United States to protect the public health, welfare, or the
environment without provision of advance notice.
7. This Tolling Agreement does not limit in any way the nature or scope of
any claims that could be brought by the United States in a complaint against Waterloo or the date
on which the United States may file such a complaint, except as expressly stated herein.
8. This Agreement is not intended to affect any claims by or against third
parties.
9. Defendant shall preserve and maintain, during the pendency of the Tolling
Period, and for a minimum of 90 days after termination of the Tolling Period, at least one legible
copy of all potentially relevant information and other materials subject to discovery under the
Federal Rules of Civil Procedure and relating to the Tolled Claims, regardless of any corporate
or document retention policy to the contrary. "Potentially relevant information" includes any
tangible thing such as physical materials, documents and electronically stored information.
Electronically stored information must be maintained and preserved in its original "native"
format.
10. This Tolling Agreement is effective upon execution by Waterloo, and
without the requirement of filing with the Court, and may be signed in counterparts.
11. This Tolling Agreement contains the entire agreement between the Parties,
and no statement, promise, or inducement made by any Party to this Tolling Agreement that is
not set forth in this Tolling Agreement shall be valid or binding, nor shall it be used in construing
the terms of this Tolling Agreement as set forth herein.
12. The undersigned representative of each of the Parties certifies that he or
she is fully authorized to enter into the terms and conditions of this Tolling Agreement and to
legally bind such party to all terms and conditions of this document. This Agreement shall be
binding upon the United States, acting on behalf of the United States Environmental Protection
Agency, and upon Waterloo and its successors.
Fifth Tolling Agreement between U.S. & Waterloo at 2
SIGNATURES
The United States, on behalf of the United States Environmental Protection Agency,
consentseto the terms andonyitions this Tolling Agreement by its duly authorized
representatives on thi a of -� , 2015.
Susan M. Ak rs
Assistant Sedtion Chief
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
Danica An - son Glaser
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
Fifth Tolling Agreement between U.S. & Waterloo at 3
Waterloo consents to the terms and co ditions of this Tolling Agreement by its
duly authorized representative on this„ / tday of !�_ t __ , ` 2015.
By:
Fifth Tolling Agreement between U.S. & Waterloo at 4