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HomeMy WebLinkAbout1993 Ordinance No. 054ORDINANCE NO . & SERIES OF 1993 BY AUTHORITY COUNCIL BILL NO . 58 INTRODUCED BY COUNCIL MEMBER HABENICHT AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT ;EfWEEN THE CITY OF LITTLETON, COLORADO AND THE CITY OF ENGLEWOOD, COLORADO REGARDING THE DISTRIBUTION OF COSTS FOR THE Ci..F.M IUP OF LOWRY LANDFILL SUPERFUND SITE. WHEREAS, the Cities own and operate the Littleton-Englewood Bi-City Wastewater Treatment Plant (the "Plant"); a nd WHEREAS , th e Citi es have each been named as potentially responsible parties (PRPs) by th e United Sta tes Environmental Protection Agency ("EPA') at the Lowry Landfill ("Low ry") si te as a result of th e di s po sal of sewage sludge from the Plant at Lowry; and WHEREAS, the Cities have been involved in discussions with the City and County of Dem·e r a nd Waste Management of Colorado, lnc., the own er/operators of Lowry , with regard to settling cla ims which could be brought agai nst th e Cities by the EPA, the City and County of D en,·e r, Wa ste Managem ent of Colorado, Inc. or others, as a result of th e sludge d is posed of a t Lowry: and WHEREAS , during the relevant period Littleton contributed 36.53% of the flows and Engle wood co ntri buted 63.47% oft.he flow s to the Bi -City Wastewater Treatment Plant. NOW , THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEW00 D, COLORADO , AS FOLLOWS : ~-The Englewood City Council hereby approves the intergovernmental Agreement between th e City of Littleton and the City of Englewood regarding the distributi on of costs for the cleanu p of Lo wry Landfill Supen·und Site. Such Agreement generally contains as fo ll ows: I . That the Ci ty of Littleton's share of th e cash payment to be made to th e City and Coun ty of Denver and to Wa ste Management of Colorado , Inc . sh all be $704,781.33 and its share of the reopen er which it may potentially have to exp end in th e future shall be 36.53%. 2. That th e City of Englewood 's share of the ca sh payment to be made to th e City an d Co unty of Denver and Wa ste Man agement of Colorado, Inc . sh a ll be $1 ,224 ,5-10 .67 and the reopener shall be 63.47%. 3. Except a , specifically limited by Paragraph 4 here~r. Littleton and Engl ewo,d , rel ease and covenant not t o sue each other with respect to any and all claims , including any civil or administrative rlaim, order, demand , charge , li abi1ity , obligation , action , suit, damage (including direct, conse qu ent 'al , spe<i al and incid ental damages), judgment, loss, costs, (inclu ding t 'ERCLA r es ponse co sts , wh eth er legal or equitable in nature), expe nse, fin ,,, or penal ty, including but not limited to , attorn ty fee s, expert fees, court cost s a 1d other cos ts of adm inistrativ e proc eedings \)r litigation wh ether ·.hey ari se unier statute or comm on law , or in contract or tort (including .J . 11 a~ negligence, strict liability or otherwise) and whether they are presently known , unkno"°-n, existing, or yet to incur in the future, under : the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S .C. Section 9601 , ll lWI , ("CERCLA"); the Resource Conservation Recovery Act, as amended, 42 U.S .C. Section 6901 , ll lWI , ("RCRA"); the Colorado Hazardous Waste Act , C.R.$. Section 25 -15 -101 , lllWI, the Colorado Hazardous Waste Cl eanup Acts, C.R.$. Section 25-16-101, J:1 ,wi., Section 25-22 .101, J:.L .wi. and Section 18-13-112 or any other federal, state or local le ·• (or implementing regulation s), now in effect or as any of the same may be amended from time to time, in connection with the alleged generation, transportation, storage, trea tm enj .. , di spc,sa1 or the release or thre11tened release o(hazardous substance s at, and or from the Lowry Landfill Superfund Site located in Arapahoe County, Co lorado, listed on the National Priorities List, 42 CFR, Part 300, Appendix B (herei nafter t h e "Site"), inc1uding but not limited to, claims relating to all remed ial investigations or feasibility studies , records of dec ision , response ac tion s, removal actions, remedial designs, and remedial actions, oversight costs, and any other activity related to the Site. 4 . Not..-,rithstanding anything to the co ·1trary contained herein , the release contain ed in Paragraph 3 above shall not extend and shall not be construed to extend to: (a ) any claims made by the United States relating to the adeqW1cy of the Cities response to request for information pursuant to CERCLA Section 104 (e); (bl any cla '.ms relating to or arisin g out of the disposal of haznrdous substances by the Cities, or each of them, at any lncation other than the Site: (c) any clai ms not relating to the Site; (d ) any claims made by or against the Cities, or each of them, pursuant to the participation agreem ent for the Lowry Coalition or th e Lowry Landfill Industrial General Group ; (e ) any claims resulting from violf.ltion of any orders pursuant to CERCLA prior to the effective date of this agreement; (f) any contractual claims; (g ) an,1 crimi nal claim s; (h ) &n)' claim s for natural resource damage s pursuant to CERCLA Section 107 (0 ; or (i) any claims which may be asserted or filed by any third party or parties in ton in connection with the alleged generation, tra n sportation , st.o!"a ge, treatment or di sposal of hazardous substances by or through Cities or each of them at the Site, inr.luding but not limited to, any claims urising by vinue of nuisance, trespass, negligence, strict liability, or toxic torts . lil:J:ilim...2 . In the eve nt that the settlement sum is changed from $1 ,929,322.00, the Englewood City Co uncil specifically authorizes settlement base d on the for egoing perc entage in di stributing cost of settlement between Englewood and Littleton. ~-Th e Mayo r and City Clerk are hereby authorized to sign and attest, respectively, the said Agreement fo r and on behalf of the City Council and the City of Englewood . In t roduced, read in full, and passed on first reading on the 15th day of Nov em ber, 1993 . -2 - !' Published as a Bill for an Ordinance on the 18th day of November, 1993. Read by title and passed on final reading on the 6th day of December, 1993. Publi shed by itle as Ordinance No .s.:f. Series of 1993, on the 9th day of December, 1993. ATTEST : 0 at> ><'4 < xv' {J_µ✓ lratricin H. Crow . City Clerk I, Patricia H. Crow , City Clerk of the City of Englewood , ColJrado, hereby certify that the abo ve and foregoi ng is a t~ 1 7 copy of the Ord inance pa ssed on final reading and published by ti tle as Ordinance No. ,2I, Series of 1993 . ~«~1J1e~✓ Patricia H. Crow -3- COUNCIL COMMUNICA 11ON Date November 15, 1993 INI11A TED BY STAFF SOURCE Agenda Item 20 i City Attorney's Office Rick DeWitt, City Attorney ISSUE/ ACTION PROPOSED Subject Lowry Landfill Superfund Site Cleanup Costs . Recommendation to adopt the ordinance giving approval of the intergovernmental Agreement between Littleton and Englewood for the distribution of costs for the cleanup of Lowry Landfill Superfund Site . PREVIOUS COUNCIL ACTION This issue has been discussed several times over the past few years. BACKGROUND The Cities own and operate the Littleton-Englewood Bi-City Wastewater Treatment Plant (the "Plant"). The Cities have each been named as potentially responsible parties (PRPs) by the United States Environmental Protection Agency ("EPA") at the Lowry Landfill ("Lowry ") site as a result of the disposal of sewage sludge from the Plant at Lowry. The Cities have been involved in discussions with the City and County of Denver and Waste Management of Colorado, Inc ., the owner/ operators of Lowry, with regard to settling claims which could be brought against the Cities t-y the EPA, the City and County of Denver, Waste Management of Colorado, Inc . or others, ~s a result of the sludge disposed of at Lowry . PROS AND CONS OF OPTIONS REVIEWW STAFF ANALYSIS During the Rele vant Period Littleton contributed 3653% of the flows and Englewood contributed 63 .47% of the flows to the Bi-City Wastewater Treatment Plant. The City anticipates settling with the Ci'Y and County of Denver and Waste Management ui Colorado, Inc . on the cities liability at Lowry, the cost will be approximately $1,929,322 .00 together with an agreement to pay certain expenses of cleaning up Lowry after $319,000,000 in the event of a failed remedy . The Cities are agreeable to paying such amount and desire to allocate the costs and final remedy expen:~s on the basis of flows from each city to the Plant from September 1977 through June 1980 (the '"Relevant Period "). That the City of Littleton's share of the cash payment to be made to the City and County of Denver and to Waste Management of •-olorado , Inc . sha ll be $704 ,781.33 and its share of the Re pener which it may potentially ha ve to exp end in the future shall be 36.53 %. That the City of Englewood's share of the cash payment to be made to the City and County of Den ver and Waste Management of Colorado, lnc. shall be $1,224 ,540 .67 and the Reopener shall be 63.47%. 8 0th the City Manager and the Di rector of Utilities prefer this resolution to the issue of Lit~leton /Englewood liability . FINANCIAL IMPACT That the City of Littleton's share of the cash payment to be made to the City and County of Denver and to Waste Management of Colorado, Inc . shall be $704,781.33 and its share of the Reopener which it may potentially have to expend in the future shall be 36.53%. That the City of Englewood 's share of the cash payment to be made to the City and County of Denver and Waste Management of Colorado, lnc. shall be $1,224,540 .67 and the Reopener shall be 63 .47 %. The City has reserved these fund s and they ca n be paid when final agreement is reached .