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HomeMy WebLinkAboutEnvironmental Protection Agency-11/25/2013THIRD 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, Iowa ("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 September 1, 2014, 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 Claims. 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 acicnowledgnrent 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 continence 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, docrunents 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. Third Tolling Agreement between U.S. & Waterloo at 2 SIGNATURES The United States, on behalf of the United States Environmental Protection Agency, consents to the tenns and conditions of this Tolling Agreement by its duly authorized representatives on this 25day of N/OYerrib4N , 2013. l L4'CK Susan M. Al rs Assistant Section Chief Environmental Enforcement Section Environment and Natural Resources Division United States Department of justice Danica AndGlaser Trial Attom Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice Third Tolling Agreement between U.S. & Waterloo at 3 Waterloo consents to the terns and conditions of this Tolling Agreement by its duly authorized representative on this ,R4 day of /°,9//e0/61.4 , 2013. r'! 13y: Ernest G. Clark, Mayor City of Waterloo, Iowa Third Tolling Agreement between U.S. & Waterloo at 4