RESOLUTION 92-20527 v 1
RESOLUTION NO. 92-20527
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE THE ATTACHED
PRELIMINARY FUNDING AGREEMENT AND
PARTICIPATION AGREEMENT TO FINANCE AND PERFORM
INVESTIGATORY, ASSESSMENT, AND PHASE ONE
(OU#1) CLEAN-UP EFFORTS WITH OTHER PARTIES
WHICH HAVE BEEN IDENTIFIED AS BEING
POTENTIALLY LIABLE FOR FEDERAL SUPERFUND
DAMAGES AND COSTS RELATING TO THE CLEAN-UP OF
THE PETROLEUM PRODUCTS CORPORATION SUPERFUND
SITE LOC2TED IN PEMBROKE PARK, FLORIDA, AND TO
EXECUTE A CONSENT DECREE WITH THE UNITED
STATES OF AMERICA IN THE UNITED STATES
DISTRICT CURT FOR THE SOUTHERN DISTRICT OF
FLORIDA, MIAMI DIVISION, CASE NO. 91-2014 CIV-
MARCUS, RELATIVE THERETO, AND TO EXECUTE ANY
AND ALL MODIFICATIONS APPROVED BY THE CITY
MANAGER AND CITY ATTORNEY AS MAY BE NECESSARY
WITH RESPECT TO SAID AGREEMENTS AND DECREE.
WHEREAS, the City of Miami Beach has been notified by the
United States Environmental Protection Agency that it is a
potentially responsible party (PRP) as defined by Section 107 (a) of
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) , 42 U.S.C. §9607 (a) , as amended, with
respect to hazardous waste contamination at the Petroleum Products
Corporation Super fund Site (Site) located at 3130 S.W. 19th Street,
Pembroke Park, Florida 33023 ; and
WHEREAS, certain potentially responsible parties with respect
to the Site have entered into a Preliminary Funding Agreement, to
which each participating party must contribute Four Thousand
Dollars ($4 , 000. 00) , and a Participation Agreement, to which each
cooperating party must contribute Eighteen Thousand One Hundred
Thirty-Three and 34/100 Dollars ($18, 133 . 34) , to finance and
perform investigatory, assessment, and Phase One (OU#1) clean-up
efforts at the Site, and have executed a Consent Decree with the
United States of America in The United States District Court for
the Southern District of Florida, Miami Division, Case No. 91-2014
CIV-MARCUS, for this purpose; and
WHEREAS, in the interests of protecting human life and the
environment, the City of Miami Beach wishes to cooperate in good
faith with the United States of America to expedite the remedial
work at the Site and to avoid prolonged and complicated litigation
between the parties involved; and
WHEREAS, without admitting any liability arising out of the
transactions or occurrences alleged in the complaint filed by the
United States of America in the United States District Court for
the Southern District of Florida, Miami Division, Case No. 91-2014
CIV-MARCUS, and without admitting any liability with respect to any
issue dealt with in the Consent Decree entered in said case, the
City Manager recommends that the City of Miami Beach enter into the
Agreements and Consent Decree attached hereto, and the City
Attorney has approved said Agreements and Consent Decree as to
form; and
WHEREAS, it may be necessary from time to time for the City
of Miami Beach to enter into modifications with respect to the
aforementioned Agreements and Consent Decree;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA that the Mayor and the City Clerk are
authorized to execute, on behalf of the City of Miami Beach, the
attached Preliminary Funding Agreement, Participation Agreement,
Consent Decree, and any and all modifications to said Agreements
and Consent Decree which may be necessary in the future and which
are approved by the City Manager and City Attorney.
PASSED AND ADOPTED THIS 174L DAY OF tune , 1992 .
►' OR
ATTEST:
E—reytmAr-
CITY CLERK i-/ 1„...
FORM APPROVED:
LEGAL DEPARTMENT
< f/ /9/./:-
DATE
DJT/bfg
c:\wp51\resoluti\superfun.agr
a '
CITY OF MIAMI REACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010
FAX: (305) 673-7782
COMMISSION MEMORANDUM NO.___D)9c.-9;z,�
TO: Mayor Seymour Gelber and DATE: June 17, 1992
Members of the City Commission
FROM: Roger M. Carlton //OA
Ci Manager t '
SUBJECT: RESOLUTION REGARDING SUPERFUND PARTICIPATION AGREEMENTS
AND CONSENT DECREE
ADMINISTRATION RECOMMENDATION:
The Administration recommends that the Mayor and the City Clerk
execute the attached Preliminary Funding Agreement and
Participation Agreement to finance and perform investigatory,
assessment, and Phase One (OU#1) clean-up efforts with other
parties which have been identified as being potentially liable for
Federal Superfund damages and costs relating to the clean-up of the
Petroleum Products Corporation Superfund Site (Site) located in
Pembroke Park, Florida, and to execute a Consent Decree with the
United States of America in the United States District Court of
Florida, Miami Division, Case No. 91-2014 CIV-MARCUS, relative
thereto, and to execute any and all modifications approved by the
City Manager and City Attorney as may be necessary with respect to
said Agreements and Decree.
Initially, the Agreements needed to be signed by June 12 , 1992 or
else the cost of entering into each Agreement would be increased by
1.5 times; however, the City of Miami Beach has been given an
extension until June 19, 1992 to enter these Agreements at the
original amounts.
BACKGROUND INFORMATION:
I. HISTORICAL INFORMATION
The City of Miami Beach has been notified by the United States
Environmental Protection Agency (EPA) that it is a potentially
responsible party (PRP) as defined by Section 107 (a) of the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) , 42 U.S.C. Sec. 9607 (a) , as amended, with respect to
hazardous waste contamination at the Petroleum Products Corporation
Superfund Site (Site) located at 31305: W. 19th Street, Pembroke
Park, Florida 33023 .
To date, the City of Miami Beach has been identified by EPA as
contributing 750 gallons of waste oil to the Site during 1975 . The
EPA is actively engaged in gathering information from officials at
the contaminated Site and from transporters in order to build its
case against those entities which have thus far been identified as
potentially responsible parties and which would be jointly and
severally liable for the clean-up of the Site.
Continued. . .
47
1
AGENDA
ITEM
DATE 6-
17 a
A
COMMISSION MEMORANDUM PAGE TWO JUNE 17, 1992
•
II. FUNDING AGREEMENT ($4, 000. 00)
The funds provided pursuant to this Agreement will be used to
pursue interests common to the participating parties including an
analysis and comment on plans for response actions at the Site,
investigating and notifying other parties who are potentially
responsible for response costs, analyzing the extent to which funds
may be available from the Early Detection Incentive Program to
reimburse response costs at the Site, and undertaking any other
activities which the participating parties may authorize.
Participation in this Agreement is not construed as an admission of
law or fact and each participating party reserves all rights,
claims, and defenses it may have, including those with respect to
other participating parties. In addition, any participating party
may freely withdraw from this Agreement. However, any party that
so withdraws shall not be entitled to any reimbursement of any
funds contributed. Pursuant to an addendum to this Agreement, any
final allocation of responsibility at the Site shall be
retroactively applied to contributions made under this Agreement
and shall apply prospectively to any future costs incurred under
the Agreement.
III. PARTICIPATION AGREEMENT ($18, 133.34)
The purpose of this Agreement is to fund the implementation of
Operating Unit No. 1 (OU#1) at the Site. OU#1 concerns the
assessment of the impact on soils and ground water at the Site and
a design of a free product removal system. The current cost for
this phase is $300, 000, however, this figure may increase to at
least $650, 000 by year end. By entering into the OU#1
Participation Agreement there is no obligation to enter subsequent
agreements which will be offered pertaining to Phases 2 and 3 of
the clean-up operation (OU#2 and OU#3) --although failure to
continue to cooperate in subsequent phases may subject parties to
suit by the EPA and the PRP group. There is, however, the
potential for additional assessments in the OU#1 Phase, as set
forth in paragraph 3 of the Agreement. By entering this Agreement,
a party is not admitting liability nor is waiving any defenses or
claims it may assert, however there does appear to be an open-ended
financial responsibility unless the PRP group will agree to cap
future assessments as to the City of Miami Beach. In addressing
this concern, counsel for the PRP Steering Committee has advised
that language will be added to the Agreement to the effect that
further assessments will not be made against governmental entities
without their consent, but that governmental entities will be
expected to use good faith with respect to approving future
assessments. Another provision of concern in the Agreement is
contained in paragraph 16 regarding allocation in the event of
default. Should any cooperating party default under the Agreement,
the unpaid balance of that party's share will be assessed according
to the formula set forth in Exhibit B. However, cooperating
parties will have the right to proceed against the defaulting party
or its successor or assigns. Also of concern in this Agreement is
the flat per capita figure which has been requested of all parties
regardless of relative liability. This inequity is addressed in
the reimbursement and reallocation clauses set forth in paragraphs
4 and 5 of the Agreement. All cooperating parties which enter into
the Participation Agreement are required to sign the Consent Decree
which is attached hereto.
Continued. . .
• 48
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COMMISSION MEMORANDUM PAGE THREE JUNE 17, 1992
ANALYSIS:
At the present time, good faith participation by the City of Miami
Beach is advisable. Failure to join with the cooperating parties
and the PRP group in these Agreements may subject the City to legal
action by the PRP group and the EPA as a recalcitrant party.
Cooperation is a factor which the district courts have recognized
in allocating liability under Superfund laws that weighs in favor
of cooperating parties and against recalcitrants. An argument
which may be available to the City of Miami Beach in the future is
that the City should be treated as a de minimis entity which
contributed 1% or less to the contaminated Site and, thus, able to
buy out of future liability. However, it is not anticipated that
the EPA's investigation will render the facts sufficient to
determine anyone's de minimis status until September or October.
At that time, Phase 2 (OU#2) which involves active clean-up of
contaminated soil and Phase 3 (OU#3) which concerns clean-up of
contaminated ground water will be pursued. The cost of these
additional operable units is estimated between $2 million and $40
million dollars. When these next clean-up phases are ready to
begin, another agreement will be presented to the PRP'-s to assist
in these clean-up efforts.
CONCLUSION:
In conclusion, based on the background information and the
analysis, the Administration recommends that the attached
Preliminary Funding Agreement, Participation Agreement, and Consent
Decree, and any and all modifications to said Agreements and
Consent Decree which may be necessary in the future and which are
approved by the City Manager and City Attorney, should be executed
by the Mayor and the City Clerk.
RMC: C: lcd
Attachments
•
49
3
A
CITY OF MIAMI BEACH
TO: Roger Carlton
City Manager
/
FROM: Debora J. Turner J%\
Sr. Asst. City Attorney
DATE: June 11, 1992
RE: Petroleum Products Superfund Site
As a follow-up to our meeting yesterday morning, attached
please find copies of the following
for your information and
review:
1. Letter from John Barkett, Esq. , Group Counsel for the PRP
Steering Committee, dated June 10, 1992, advisingthat
any additional assessments imposed
p ed pursuant to the
Participation Agreement will be made subject to City
approval with the caveat
that the City willtake up the
matter of further assessments in good faith.
2 . Letter from John Barkett, Esq. , dated June 11, 1992 ,
consenting to the presentation of the Participation
upcoming Agreement at the City
P
Commission s l on meeting. (As
you will note, the Participation Agreement is stamped
privileged and confidential and
states in paragraph 14
that it shall not be disclosed to non-signatories without
the consent of the cooperating parties) .
DJT/bfg
cc: Laurence Feingold
City Attorney
John C. Dellagloria
Chief Deputy City Attorney
c:\wp51\memos\cariton.epa
•
50
I ( `
CaLL DAVcsoN CARTER SMITH SALTER & BARr4ETT
PRO/[i>IONAL ASSOCIATION
ATTOAN[YS AT LAW
JANIE L. ANOLA$ON 3100 MIAMI CZNT[A
JOHN Irl. •AArtLTT !Ot iOVTk •IsGAYN[•CUL[yAAO
FRANCIS L. CARTER
NORMAN A.COIL. MIAMI. FLORICA 33131.1311
LIsrTTE M. CURRItA (30113»•1100
BARRY R. OAvI OSON
YALC J• PI$MMAM TCLtc0.st (30$)3747111
MICMA[L J. MIGCA ,
JOHN J. MCNALLY
OAARgu.W. AAVNC
VAMC$ E. SALTl1R I•MIY1.1.4 CMAMAANIIA
AICHAAO C. SMITH or eeudisss.
COU1RTNtV S.WILION
CHtA L A.ZIC*LSA June 10 , 1992
. Facsimile (673-70021.
I �
Debora Turner, Esquire
Senior Assistant City ATtorney
1700 Convention Center Drive
MIami Beach 33139
Re: Petroleum Products
Dear Ms. Turner:
�
As you equested, I am writing to advise you that the
Agreement amongthe PRPs will be modified to reflect that, if
g he Cityof
additional alssessments are required from the PRPs, , t
Miami Beach wi 11 have to make them only after the City approves
of
them, wit the caveat that the City will take up the matter of
further assessments in good faith. This same procedure will be
followed ford all of the cities, counties and boards that are
joining. Vie PRP Group recognized the need for such an approach
in the case of such entities.
I am also confirming the extension of the June 12 deadline
to two days after the commission meeting on June 17 .
If you have any other questions, please call me.
Sincerely,
.�. I'1 6tbaaCr-
i John M. Barkett:
/jmb
•
•
51 . .
COLL DAVIDSON CARTER SMITH SALTER & BARKETT
PROFESSIONAL A$$OCIATION
ATTORNEYS AT LAW
. JANIE L.ANO[RSON 3200 MIAMI CINT[A
JOHN M. SARK[TT
FRANCIS L.CARTIER EDI Sawn*eii!'JTN[•OuLtvAwo
NORMAN A.COLL. MIAMI. F1.O111CA 33131.1311
LISETTE M.CURRIER (308)3,3•15/00
BARR+► R. DAVIOSON
VALE J. RtSMMA1N TELECO>MtA(305)374.4mM
MICWALL J. NICER
JOHN J. MCNALLr
OARRELL W. RAYN E
VANCE E. SALTER PHYLLIS SHAMPANILR
RICHARD C. SMITH
COURTNEY S.WILSON Or GDuNfss.
CMLRYL A.s1CNLER June 11, 1992
Sy Facsimile (673-7002)
Debora Turner, Esquire
Senior Assistant City Attorney
1700 Convention Center Drive
Miami Beach 33139
Res Petroleum Products
Dear Ms. Turner:
As you requested, I am writing to acknowledge that, for the
participation agreement to be presented to the commission, it
will have to become a public document. I am consenting to that
presentation on behalf of the existing signatories .
Sincerely,
, li'?"".ohnM. it113:41144irkeulirtt
/jmb
52
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•
4
OFFICE OF THF CITY ATTORNEY
604
F L C R I D A
4
L.Al RENC E FFINGOLD *tlNcouh a�rro *f
P.O. BOX O
N2e.>; MIAMI BEACH, FLORIDA 33119-203
TELEPHONE (305)673-7470
TELECOPY (305)673-7002
July 14 , 1992
John M. Barkett, Esq.
Coll Davidson Carter Smith Salter & Barkett, P.A.
3200 Miami Center
201 So. Biscayne Boulevard VIA HAND-DELIVERY
Miami, Florida 33131-3312
Re: Petroleum Products Corporation Superfund Site
Dear Mr. Barkett:
Enclosed please find an original Participation Agreement and
Preliminary Funding Agreement which have been executed by Mayor
Seymour Gelber on behalf of the City of Miami Beach. Also
enclosed, please find a check in the amount of $22 , 133 . 34 made
payable to the Coll, Davidson, Carter, Smith, Salter and Barkett,
P.A. Trust Account which represents the contributions required
under the Preliminary Funding Agreement and for participation in
the PRP Group. Also enclosed is a certified copy of City of Miami
Beach Resolution No. 92-20527 which authorizes the Mayor and City
Clerk to execute the aforesaid Agreements on behalf of the City.
Should you require any additional information from the City of
Miami Beach, please do not hesitate to call me at 673-7470 . I look
forward to meeting with you and the PRP Group representatives at
the upcoming meeting on July 15, 1992 .
Very truly yours,
,,je_t
Debora J. Turner
Sr. Assistant City Attorney
DJT/bfg
Enci notn rr ri
c:\wp51\letter\barkett.epa
1700 CONVENTION CENTER DRIVE — FOURTH FLOOR — MIAMI BEACH, FLORIDA 33139
c •
OFFICE OF 1HE CITY ATTORNEY
624 iy‘ weard
F L O R I D A
••`' �BFB
*kINCOR RATED *1
LAURENCE FEINGOLD = P.O. BOX O
���
Cl 1 Y ATTORNEYMIAMI BEACH, FLORIDA 33119-203
H26
TELEPHONE (305)673-7470
T ELECOPY (305)673-7002
I hereby acknowledge receipt of Check No. 107054 from the City of
Miami Beach in the amount of $22 , 133 . 34 made payable to the Coll ,
Davidson, Carter, Smith, Salter and Barkett, P.A. Trust Account
on this day of July, 1992 .
PRINT NAME
1700 CONVENTION CENTER DRIVE — FOURTH FLOOR — MIAMI BEACH, FLORIDA 33139
. . .
, . . .
•
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VENDOR CITY OF MIAMI BEACH
NO. MIAMI BEACH,FLORIDA CHECK DATE
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STATEMENT OF REMITTANCE
INDEX NO. INVOICE NO. P.O.NO. GROSS AMOUNT DISC. NET AMOUNT
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PETROLEUM PRODUCTS CORPORATION
SUPERFUND SITE
PRELIMINARY FUNDING AGREEMENT
1 . This agreement is entered into among some of the
entities or persons ( "Participating Parties " ) which the U.S .
Environmental Protection Agency ( EPA ) has notified may be
potentially responsible to EPA on EPA' s damages claim for
response costs incurred at the Petroleum Products Corporation
( "PPC" ) site in Pembroke Park, Florida.
2 . Each Participating Party agrees to contribute, and
hereby does contribute, the sum of TWO THOUSAND AND 00/100
DOLLARS ( $2 , 000 . 00) by check made payable to the Coll Davidson
Carter Smith Salter & Barkett, P.A. Trust Account. This sum will
be used to pursue activities of common interest to the
Participating Parties . These activities may include the
following:
a. Providing analysis and comment on plans for response
actions at the PPC site proposed by EPA or the Florida
Department of Environmental Resources ( "FDER" ) r
b. Investigating and notifying other parties who are
potentially responsible for response costs incurred at
the PPC site;
c . Analyzing the extent to which funds available under the
Florida Early Detection Incentive program may be used
to reimburse response costs at the PPC site; and
d. Undertaking such other activities as the Participating
Parties may authorize.
3 . Decisions regarding the expenditure of funds
contributed by the Participating Parties shall be made by
majority rule, either in writing or orally.
f t
4 . Activities undertaken pursuant to this agreement are _n
defense of claims that may be asserted byEPA or FDER, and d such
activities are subject to the privilege of joint defense and all
other applicable privileges .
5 . Entry into this agreement shall not be construed as an
admission of law or fact. Each Participating Party reserves all
rights , claims , and defenses it may have, including those with
respect to other Participating Parties .
6 . Any Participating Party may freely withdraw from this
agreement; however, any party that so withdraws shall not be
entitled to reimbursement of any funds contributed pursuant to
this agreement.
7 . This agreement may be executed in separate parts , each
of which together shall constitute g
single agreem- t.
9
ii( dff/
S .• a, re
Se "
ur Gelber, Mayor
Nam- ( Printed) and Title
ATTEST: City of Miami Beach
Company or Person Represented
' -.-- c,1,\,-,,,A E. ,,'"-R-vc-w,
7/2/92
RICHARD BROWN, CITY CLERK q/211 2_
Date
FORM APPROVED
LEGAL DEPT.
By Lk-fa2C2.1:-LA '2.-e2L
Date ////92
PETROLEUM PRODUCTS CORPORATION
SUPERFUND SITE
PRELIMINARY FUNDING AGREEMENT
INVOICE NO. 2
Please remit $2 , 000 payable to the Coil Davidson Carter
Smith Salter & Barkett, P .A. Trust Account as your additional
contribution to the Petroleum Products Superfund Site PRP Group
as decided by the PRP Group at its meeting on April 17 , 1991 .
Payments are due on or before May 17 , 1991 .
Petroleum Products Corporation Superfund Site
Preliminary Funding Agreement
ADDENDUM NO. 1
In consideration for their mutual promises and undertakings
g
and other valuable consideration and as reflected by the
execution of Addendum No. 1 below, the signatories to the
Petroleum Products Superfund Site Preliminary Funding Agreement
agree to the following:
Reallocation
Any final allocation of responsibility at the Petroleum
Products Site, whether by adjudication, by judicially approved
consent decree, or by agreement among the signatories to this
Agreement, shall be retroactively applied to contributions made
under this Agreement, and shall apply prospectively to any future
costs to be incurred under this Agreement. Reallocation by
agreement among the signatories to this Agreement must be by
unanimous agreement. Any reallocation shall be set forth in
writing either as a modification to this Agreement or as a
superseding agreement, and shall set forth credits and debits to
adjust amounts paid or received by each signatory under this
Agreement. Within thirty ( 30 ) days of the execution of such
reallocation agreement, the signatories to this Agreement shall
make such payments to each other as are set forth in such
reallocation agreement. The Town of olden Beach, Miami Shores
Village, Inc . and Rich Motors , Inc. =ire not subject to this
paragraph without prejudice to any Is
hts or cl = ims
g
remaining signatories may have aga 'nst them.
S gna e
Se ' our Gelber, Mayor
j'- ( Printed) and Title
ATTEST: City of Miami Beach
Company or Person Represented
c-
7/2/92
RICHARD BROWN, CITY CLERK Date
FORM APPROVED
( 1jb092490 .cl )
LEGAL DEPT.
By
Date (//i/9z-
' r
?R V I.LEGED AHD CONFIDENTIAL
,DINT DEFENSE COMmuNICATIali
P art is it at i o greement
This Participation Agreement is entered into this 15th day
of March, 1991, for the purpose of funding the implementation of
Operable Unit #1 ( "OU#1" ) at the Petroleum Products Corporation
"PPC" ) Superfund site located 3130 Southwest 19th Street,
Pembroke Park, Broward County, Florida ( "the Site" ) . -
The premises for this Participation Agreement are:
A. The Environmental Protection Agency ( "EPA" ) , charged
with enforcement of the federal Superfund law, determined in an
Interim Record of Decision dated October 5 , 1990 , that the
Biscayne Aquifer located beneath the Site has been damaged and
y � taken. EPA is primarily seeking the
that remedial action must be
removal of free product from the aquifer through what EPA calls
Operable Unit #1 . The actual design of OU#1 is yet to be
determined.
Theparties entering into this agreement ( "Cooperating
•B' • potentiallyliable persons to the
Parties" ) were identified as
United States
under the federal Superfund law for damages at the
Site. Cooperating
Parties , along with other persons , received a
special notice letter from EPA under Section 122 of the federal
law, givingthem the option of implementing OU#1 by
Superfund• � the United States Dis-
trictinto a Consent Decree approved by
entering
for the Southern District Court of Florida binding
Court
them to conduct the work required to complete OU#1, or facing
liti
• gation by the United States for damages incurred by the
United States in implementing OU#1 .
C . Cooperating
Parties entered into negotiations with EPA.
model consent decree for remedial
has adopted a action of the
type contemplated lated at the Site for OU#1, from which EPA refuses to
deviate in any substantial manner.
D. Cooperating eratin Parties believe that controlling the con-
duct of OU#1 will present the and future damages claims of
the United States and will mitigate the potential for additional
damage to the aquifer.
E . EPA is planning
additional operable units for the Site,
•
• currentlyestimated to range approximately
the costs of which are
between $2 million and $40 million. Cooperating Parties believe
that controlling implementationni-
of OU#1 will enable them to mini-
mize
i
mite or significantly reduce the costs of future operable units .
F. The Site has qualified for reimbursement ursement of certain
remedial action expenses from the Inland rTrustP�otect ion TrsFund
( IPTF) , created by the Florida legislature under e
Cha tr
P 376 ,
Florida Statutes . Environmen-
tal
State of Florida Department of nvironm -
en
tal Regulation administers the IPTF. By workingtogether,9 Coop-
erating Parties hope to obtain the maximum amount of reimburse-
ment ment for their work from the IPTF.
G. Hence, each Cooperating Party individually decided to
execute the Consent Decree which EPA is requiring Cooperating
Parties to sign in order to conduct OU#1 . As a result, they are
required to implement a Scope of Work prepared by EPA to carry
out the tasks required to complete OU#1 ( "the Work" ) .
H. In entering into the Consent Decree and this Agreement,
Cooperating Parties do not admit that they have any liability
under the federal Superfund law, state law, or the common 'aw,
for the damages claims of the United States or the claims of anv
other person. To the contrary, they specifically deny any such
liability. Rather, their interest is in establishing a sensible
framework for a large group of parties to comply with the terms
of a Consent Decree executed by each of them in a good faith set-
tlement of damages claims of the United States and to cooperate
among themselves in this effort to achieve the goals set forth
above.
In consideration of the premises , mutual covenants and con-
ditions herein contained, Cooperating Parties, therefore, agree
as follows :
1 . Payments
Each Cooperating Party shall pay into trust the amount
appearing on Exhibit A attached to this Agreement within 30 days
of the execution of this Agreement . Payments shall be made to
the Coll Davidson Carter Smith Salter & Barkett P .A. Trust
Account, unless otherwise agreed to by the Cooperating Parties .
These funds shall be referred to as the "PPC OU#1 Trust Fund. "
The amount contributed by each Cooperating Party is premised on a
budget of $300 , 000 to meet the obligations of the Cooperating
Parties under the Consent Decree and their needs under this
Agreement. Funds ( "OU#1 Funds" , contributed by each Cooperating
Party shall be used for any purpose necessary to meet the obliga-
tions or needs of the Cooperating Parties under this Agreement,
including the conduct of OU#1 under the terms of the Consent
Decree, satisfaction of administrative needs of the Cooperating
Parties , completion of applications for reimbursement from the
IPTF, payment of Future Response Costs ( as defined in the Consent
-2-
zepun L:IPd buT1Pl9doo0 i. eOPAq paATaDaa zo pTPd s4unomP snCpP
04 s1Tgep PUP sgTpezo ugso; gas TTPus puP '4uawaasbP bUTpas
-zadns P SP ao quewaa.zby sT144 uOTgPOT;Tpow P SP aetpTa buT4T.zM
UT 1;�s03 las eq TTPus uoTlPooTTPa. Auy •a4Ts Ddd au.4 1p SgTun
eTgPzado ean4n; AUP 04 pa4PTa.z aa.zOap u9suo0 P 30 uoTIf3axa
so; yd3 Aq es app aur Aq an000 4snw puP 4uewaazbP snowTUPun
Aq eq .asnw seT4.Pd enT4P1edoo0 buoUlP .4uawaa.zbP Aq U0TgPOOTTP9'
• auawaasby sTu; .zapun paainouT aq ssoo a.znan; AUP oq ATe!T4
-oadsozd ATddP TTPus puP '4uawaasby STuq zepun s4soo 04 paTTddP
ATateTopoi4aa eq TTPus ' saT4zPd buT.aPsadoo0 buouiP UawaeabP
Aq zo 'aasoap 4uesuoo panozddP �TTpTOTpnC Aq 'UOTPoTpnCpP Aq
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o4 4uewesingwTea 'alai aup woz; spun; 30 4dTeoas au.4 uodn
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au ;0 saTouabP gP144 abpaTMoU pP saT.4zPd buT4Paedoo0 •g 47.gTqx2
uT ug1o; gees SUOT1PgTwIT aur Oa C qns puP eTnpeuos puP PTnw
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buTd4P=edoo0 'quaweeaby sTuq aepun speeu zTat.4 so eeaoeci 4uesuo0
au.4 Aq buT4P1adoo0 uo pesodulT suoT4PbTTgo aur A;ST1PS
o� =aToT;;nsuT sT spun; T#flO uT 000100E aPuP =eAe auq UI
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auq 'xsoµ 9u.4 pp s sasbosd alp uo saT a/Pd buT.4Pzedoo0 o4 s.soda.z
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this Agreement . Within thirty ( 30 ) days of the execution of sucl
reallocation agreement, the Cooperating Parties shall make such
payments to each other as are set forth in such reallocation
agreement. The Town of Golden Beach, Miami Shores Village, Inc .
and Rich Motors, Inc. are not subject to thisara rah without
g P
prejudice to any rights or claims that the remaining iCooperat ' ng
Parties may have against them.
6 . Additional Cooperating Parties
Additional parties may become signatories to this Agreement
upon such conditions as may be determined by the CooperatingPar-
art
Par-
ties . Each such additional
party shall execute this Agreement,
and shall simultaneously pay into the Trust holding OU#1 Funds
the amount agreed to by the additional party and the Cooperating
Parties . Exhibit A shall be amended to reflect the contribution
of the additional party. To the extent that an additionalart
P Y
becomes an Unconditional Cooperating Party as defined in Exhibit
A, then the previous Unconditional Cooperating Parties shall be
entitled, upon written request, to a refund of monies contributed
to bring their contribution down to the new per capita contribu-
tion level also as defined in Exhibit A.
7 . Federal Cooperating Parties
Cooperating Parties may enter into an agreement with agen-
cies of the Department of the Defense, or other federal agencies ,
to allow their participation with Cooperating Parties in the
joint funding of OU#1. Cooperating Parties may designate a per-
son to execute such an agreement as their authorized representa-
tive.
epresenta-
tive. Contributions made by agencies of the Department of
Defense, or other federal agencies , shall be shown on Exhibit A
and shall be taken into account for other purposes under this
Agreement as if these agencies were signatories to this
Agreement .
8 . Decisions of Cooperating Parties
Cooperating Parties shall endeavor to reach a consensus on
any decision that must be made by Cooperating Parties under this
Agreement or to satisfy the terms of the Consent Decree. To the
extent that a consensus cannot be reached, each Cooperating Party
shall have a vote equal to the percentage of the Cooperating Par-
ty' s actual dollar contribution to OU#1 Funds divided by the
total OU#1 Funds received ( "voting power" ) , as of the time of
vote. No Cooperating Party may vote .unless all contributions
required of the Cooperating Party have been paid as of the time
of the vote. Thirty percent of the eligible voting power, in
person or by proxy, shall constitute a quorum. Except as
-4-
otherwise provided in this Agreement, a majority� Y vot e of the vot-
ing power represented at the time of the vote is re i
c1ut--ed to
decide issues put to a vote by Cooperating Parties .
q
9 . Meetings
Cooperating Parties may authorize actions under '
this Agree-
ment at meetings . Such meetings shall be held from time
in person or by telephone confere to timence. Meetings may be called by
counsel that may be retained by the Cooperating Parties
at least, six P g or by,
Cooperating Parties , or, if one is named, by
Project Coordinator. When feasible, meeting will be held
a
after, at least, five days notice to all Cooperating
meetings mayP g Parties ,
althoughg be held on less notice where necessary.
Notices of a meeting maybe made by
• telephone, mail, facsimile
transmission, or overnight delivery. Cooperating Parties may
upon written votes without
also authorize actions
a meeting after
all Cooperating Parties have been notified of the issue requiring
a decision.
10. Cooperation
Each Cooperating Party will cooperate with each other to
facilitate the completion of the Work in a timely and
cost-effective manner. Each Cooperating Party shall execute an
assignment of rights to reimbursement from the IPTF attached
hereto as Exhibit D in order to permit the DER to make reimburse-
ment to the Cooperating Parties ' PPC OU#1 Trust Fund and shall
execute whatever applications for reimbursement or other docu-
ments might be required by the DER to facilitate prompt reim-
bursement by the DER.
11 . Committees
Cooperating Parties may form committees as they see fit to
carry out the purposes of this Agreement .
12 . Documents
Documents generated under this Agreement shall be maintained
at a place determined by the Cooperating Parties . Cooperating
Parties shall each have access to such documents .
13 . Denial of liability
Nothing in this Agreement is intended, or shall be construed
to be, an admission by any Cooperating Party as to any fact or
law, or an estoppel or a waiver of defenses , cross-claims , or
third-party claims which may be asserted by any Cooperating Party
-5-
should any litigation ever result, involvingthe Site. Partici-
.
Par..yc 1-
: p ation in this Agreement shall not beresum tive of
P p or used as
evidence of the liability or apportionment of liability,
for anycosts 1 f any,
associated with the Site.
14 . Privilege and Nondisclosure
This Agreement is a confidential joint defense undertaking
and shall not be disclosed to nonsignatories without consent of
the Cooperating Parties , unless ordered to do so by a court or
otherwise required by law, or unless necessary to enforce its
terms . If this document is requested of a Cooperating Party in
discovery proceedings in future litigation,
g the Cooperating Party
shall assert a claim of privilege.
15 . Successors and Assigns
This Agreement shall be binding upon the successors and
assigns of the Cooperating Parties . No assignment or delegation
of the obligation to make any payment or reimbursement hereunder
will release the assigning Cooperating Party without the prior
written consent of the other Cooperating Parties .
16 . Allocation in the Event of Default
A majority of the voting power of Cooperating Parties shall
have the authority to declare any Cooperating Party to be in
default under this Agreement where said Member has failed to sat-
isfy any obligation in a timely manner. The unpaid balance of
any defaulting Cooperating Party' s share will be assessed accord-
ing to the formula set forth in Exhibit B (without waiving any
rights such Cooperating Parties may have against the defaulting
Cooperating Party or its successors or assigns ) . Subject to the
provisions of Paragraph 5 of this Agreement, a defaulting Cooper-
ating Party is not entitled to the return of any funds paid under
this Agreement .
17 . Waiver and Release of Liability
No Cooperating Party or its representative shall be liable
to any Cooperating Party 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
this Agreement. Nothing in this Agreement shall constitute a
waiver or release of any contribution or indemnification claim or
potential claim by one Cooperating Party against any other Coop-
erating Party. This paragraph shall survive the termination of
this Agreement.
-6-
•
•
18 . Notice
All notices , bills , invoices , reports , and other communica-
tions with a CooperatingPartyshall �---•�►munica-
be sent to the representa-
tive designated by the Cooperating Party beneath the Ccot
erating
Party' s signature at the end of this Agreement. Each Cooperating
rt to change
Party shall have the right its representative upon ten
( 10 ) days written notice to a Project Coordinator or to any other
person designated by Cooperating Parties to receive such
information.
19 . Effective Date
The effective date of this Agreement shall be the date first
stated above.
20 . Termination
This Agreement shall terminate and have no further effect in
the event that the Consent Decree is not approved and entered by
the United States District Court for the Southern District of
Florida. Otherwise, this Agreement shall terminate upon the ter-
mination of the Consent Decree.
21. Amendments
This Agreement may be amended only by unanimous agreement of
the Cooperating Parties .
22 . Severability
If any provision of this Agreement is deemed invalid or
unenforceable, the balance of this Agreement shall remain in full
force and effect.
23 . Entire Agreement
This Agreement constitutes the entire understanding of the
Cooperating Parties with respect to its subject matter.
24 . Applicable Law
For purposes of enforcement or interpretation of the provi-
sions of the Agreement, Ccoperating Parties agree that the laws
of the State of Florida shall be applicable, and further agree
not to contest personal jurisdiction_in the State Court of Flor-
ida located in Dade or Broward County, Florida or the United
States District Court located in the Southern District of Florida
with respect to litigation brought for such purposes .
-7-
25 . Separate Documents
This Agreement may be executed in two or
more counterparts,
each of which shall be
deemed an original, but all of which
together shall constitute one and the same instrument.
26 . Nature of Agreement
Nothing herein shall be deemed to create a partnership orjoint venture and/orprincipal and agent relationshipbetween
oramong the Cooperating Parties .
IN WITNESS WHEREOF, the Cooperating Parties hereto,
may be byand through their which
g appointed counsel , enter into this
Agreement as of the date first written above. Eachers
p on sign-
ing this Agreement represents and warrants that he or she has
been duly authorized to enter in this
Agreement by the company on whose behalf it is indicated
that the person is
signing.
Dated: 7/2/9
Cooperating Party: Cit, f iami :each
ATTEST:
0A,akiAFIvv`.
gy:• Name and Title)
RICHARD BROWN, CITY CLERK - Seymour Gelber, Mayor
Designated Representative For Receipt of Notice and
Invoices :
Name: LAURENCE FEINGOLD
EDDIE COX
Address : 1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FL 33139
Tele hone Number: EDDIE COX - 305-673-7010
P
LAURENCE FEINGOLD - 305-673-7470
Facsimile Number: EDDIE COX - 305-673-7782
LAURENCE FEINGOLD - 305-673-7002
FORM APPROVED
_8_ LEGAL DEPT.
B '
Date qi/P/2---
• .
A f
Exhibit A
C000erat ng Party
- Amount Percen 22
• • • • • • • • . •••-T i • '.. *4 _ _ *
CSX Transportation, Inc . $18 , 133 . 34 6 . 044
ITT Corporation
$18 , 133 . 34 6 . 044
General Tire Corporation $18 , 133 . 34 6 . 044
44
Pembroke Park Warehouses/Filmore
Investors Corp. 18 13 .
$ , 3 34 6 . 044
Petroleum Products Corporation $18 , 133 . 34 6 . 044
Racal Data Communications , Inc . $18, 133 . 34 6 . 044
Ricky' s Oil Service $18, 133 . 34 6 . 044
Rybovich Group $18, 133 . 34 6 . 044
Rybovich Corporation**
Fisher Marina, Inc . **
Rybovich & Sons Boat Works , Inc . **
Ryder Truck Rental, Inc . $18 , 133 . 34 6 . 044
Safety-Kleen Corp. $18, 133 . 34 6 . 044
AFRCE $18, 133 . 34 6 . 044
United States Coast Guard $18 , 133 . 34 6 . 044
Department of the Navy $18 , 133 . 34 6 . 044
City of Miami $18, 133 . 34 6 . 044
Conditional Cooperating Parties
Miami Shores Village $5 , 000 . 00 1 . 666
Powell Motors $5 , 000 . 00 1 . 666
Rich Motors , Inc. $5 , 000 . 00 1. 666
Town of Golden Beach $5 , 000 . 00 1 . 666
Waldron's Tank Service $8 , 000 . 00 2 . 666
BUDGET TOTAL $300 , 000 . 00
* An Unconditional Cooperating Party is one which has made a
contribution equal to the per capita contribution level . The per
capita contribution level is the amount derived by subtracting
the contributions of Conditional Cooperating Parties from the
budget total ( $300, 000 until amended) and dividing the remainder
by the number of Unconditional Cooperating Parties .
** Each member of the Rybovich Group will contribute one-third
of the per capita contribution level and shall each have a voting
power equal to the percentage of their individual contribution
divided by the budget total .
-9-
P I
Exhibit 8
Subject to the limitations below, the formula for additional
assessments by the Cooperating Parties is as follows :
1 . A majority of the doting power of the Cooperating p ati,.g Par-
t ies shall decide the amount of the assessment
required
con-
sensus on the amount cannot be� reached q if a� .
2 . Each Cooperating Party shall thena into the
Trust Fund an amount equalp y PPC OU�1
to the product derived by multipl ina
the percentage share appearingthe then Y
on current Exhibit A by
the amount of the assessment .
3 . If reallocation has first occurred pursuant to Para-
graph 5 of the Agreement, then the allocation applicable under
Paragraph 5 shall be the percentage used for each Cooperating
Party' s share of an additional assessment.
4 . Payments shall be made within 14 days after the assess-
ment is approved by the Cooperating Parties under Paragraph 3 of
the Agreement.
5 . In the event that a Cooperating Party is declared in
default under Paragraph 16 of the Agreement, the remaining Coop-
erating Parties shall pay their proportionate share of the
defaulting Cooperating Party' s share within 14 days after the
declaration of default.
6 . The following limitations apply to the application of
this formula. First, because of their potential inability to gay
additional assessments , they shall not be imposed on the Town of
Golden Beach, Miami Shores Village, Inc . , Waldron' s Tank Service,
Rich Motors , or Powell Motors , without their approval . Second,
additional assessments that raise the per capita contribution
level above $25 , 000 shall not apply to the City of Miami without
its approval . In the event that an Unconditional Cooperating
Party elects not to make additional assessments approved under .
this Agreement, such party shall become a Conditional Cooperating
Party in Exhibit A.
-10-
Exhibit C
Reimbursement to CooperatingParties of monies montes rete ived from
the Inland Protection Trust Fund shall be as :
follows .
1 . Monies shall be deposited into the PPC OU#1 Trust Fund.
2 . Eighty percent ( 80% ) of the monies shall be disbursed
Cooperating Party
to the Coo
P g or Parties which have contributed the
largest sum to the PPC OU#1 Trust Fund in equal amounts
such � � until the
sums contributed by Cooperating Party or Parties are equal
to the next lowest contributor, and sog
on until all of the monies
are disbursed.
3 . The Cooperating Parties currently anticipate phased
reimbursements . Hence, the procedure outlined in Paragraph 2
Exhibit C shall be followed forof
each reimbursement event: 20%
shall be retained and 80% shall be distributed, raduall reduc-
ing ing the contributions of the largest Cooperating Party contribu-
tors to the level of the smallest contributors .
4 . Following completion of OU#1 or the termination of this
Agreement, whichever comes first, the 20% retainage will be dis-
tributed in proportion to each Cooperating Party' s then existing
share of OU#1 Funds contributed by the then remaining Cooperating
eratin9
Parties .
5 . Monies reimbursed for expenses incurred solely by Petro-
leum Products Corporation shall be paid to Petroleum Products
Corporation.
-11-
r
Exhibit D
CITY OF MIAMI BEACH assigns to the PPC OU#1 Trust Fund
its rights to or interest in the reimbursement of monies
from the
Inland Protection Trust Fund for expenses incurred byCooperating
perat_..g
Parties in implementing Operable Unit #1 under a Consent Decree
with the Environmental Protection Agency. This assignment is
made to permit the Department of Environmental Regulation of the
State of Florida to make reimbursement payments to Cooperating
P g
Parties as a whole through the PPC OU#1 Trust Fund. Undersigned
waives any rights it may have against the DER to receivea ent
P ym
directly. Undersigned party acknowledges that DER will rely on
this assignment and waiver in order to make payment directly to
the PPC 0U#1 Trust Fund.
Cooperatin-! Party
CITY OF I,MI BEACH 1/ ATTEST:
By: iv'
'--(-:),,,,,A
S'YY,�l!', GELBER, £ SR RICHARD BROWN, CITY CLERK
Dat-d: 7/2/92
( 1jb021991.cl)
t
FORM APPROVED
_12_
LEGAL DEPT.
By
22,. I.L,71-e.
, .
Date &////qe—
URICINAL
RESOLUTION NO. 92--20527
Mithorizing the Mayor and City Clerk to
execute the attached preliminary funding
agreement and participation agreement to •
finance and perform investigatory,
assessment, and Phase One (OU#1) clean-up
efforts with other parties which have
been identified as being potentially
liable for federal superfund damages and
n _ costs relating to the clean-up of the
Petroleum Products Corporation Superfund
site located in Pembroke Park, Florida,
immimmmmimism
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1