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HomeMy WebLinkAboutMO #2410MUNICIPAL ORDER NO. 2410 A MUNICIPAL ORDER APPROVING AND AUTHORIZING THE EXECUTION OF A TOLLING AGREEMENT BETWEEN THE CITY OF PADUCAH, JIM SMITH CONTRACTING COMPANY LLC AND JSC TERMINAL LLC d/b/a MIDWEST TERMINAL WHEREAS, Jim Smith Contracting Company LLC and JSC Terminal, LLC (hereafter the "Jim Smith Contracting Entities") have provided notice to the City of Paducah ("City") `that buildup of silt and sediment was migrating from the City's transient dock downstream toward a pier owned by the Jim Smith Contracting Entities and used to off load barges with asphalt product; and WHEREAS, the Jim Smith Entities have further placed the City on notice that the continued migration of the silt and sediment will likely interfere with the Jim Smith Entities' ability to make use of the pier and limit or interfere with barges seeking access to the pier; and WHEREAS, the City is working on obtaining the necessary regulatory approval and funding for a dredging plan and/or remediation plan to alleviate the silt and sediment deposit; and WHEREAS, the City believes it is beneficial to approve and authorize the execution of a Tolling Agreement with the Jim Smith Entities for the purpose of tolling the statute of limitations for asserting any legal claims between the parties regarding the cause or effect of the silt and sediment in the vicinity of the aforesaid pier. NOW, THEREFORE, IT IS HEREBY ORDERED as follows: Section 1. Authorization. The Board of Commissioners of the City of Paducah hereby approves and the Mayor of the City of Paducah, Kentucky, is hereby authorized and directed to execute the Tolling Agreement with the Jim Smith Entities in substantially the form attached hereto as Exhibit A and made part hereof. Section 2. Effective Date. This Order shall be in full force and effect on and after the date as approved by the Board of Commissioners of the City of Paducah, Kentucky. Mayor ATTEST: Lindsay Paris , City Clerk Introduced by the Board of Commissioners, November 24, 2020 Adopted by the Board of Commissioners, November 24, 2020 Recorded by City Clerk, November 24, 2020 MO\ agree- tolling Jim Smith Midwest Terminal David Kelly, KKHB EXHIBIT A TOLLING AGREEMENT This Tolling Agreement ["Tolling Agreement" or "Agreement"] is entered into by and between JIM SMITH CONTRACTING COMPANY, LLC, a Kentucky limited liability company and JSC TERMINAL, LLC d/b/a MIDWEST TERMINAL, 1108 Dover Road, Grand Rivers, Kentucky [individually and collectively "JSC"] and CITY OF PADUCAH, KENTUCKY, P.O. Box 2267, Paducah, KY 42002-2267 ["City"]. WITNESSETH: WHEREAS, at some point during 2016, the City became aware that, when the Ohio River was at summer pool elevation, a sediment deposit had formed at the bottom of the Ohio River near the City's transient boat dock; and WHEREAS, JSC, via its legal counsel, sent a letter to the City dated February 22, 2019, whereby JSC stated that it had become aware that the continuing buildup of silt and sediment was approaching JSC's pier downstream from the City's transient boat dock, but that said silt and sediment had not yet crossed onto JSC's property; and WHEREAS, since the above -referenced times, both JSC and the City are aware that the aforesaid silt and sediment has been steadily migrating downstream toward JSC's pier such that it will likely interfere with JSC's ability to make use of its pier and limit or interfere with barges seeking access to the pier; and WHEREAS, the City is working on a dredging plan and/or remediation plan to alleviate said silt and sediment deposit with one or more of the Kentucky Division of Water, the United States Army Corps of Engineers, and the Federal Emergency Management Agency; and WHEREAS, the City is continuing to work with the various regulatory agencies in an effort to obtain regulatory approval as well as necessary funding to perform the dredging plan and/or remediation plan; the City has no control over the timing required to obtain these regulatory approvals; and WHEREAS, the parties desire that the City be given additional time to continue working on the aforementioned dredging plan and/or remediation plan as well as working with the aforesaid regulatory agencies; however, the parties are also aware that the statute of limitations on certain claims by JSC against the City related to the aforesaid buildup of silt and sediment might expire prior to the completion of the aforementioned dredging and/or remediation and the parties desire to extend and/or toll, by agreement, any statute of limitations that may expire on said claims, as more particularly described below; NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises contained herein, and in consideration for the forbearance to sue, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby agree as follows: 1. Tolling. Any statute of limitations applicable to any and all claims and/or lawsuits that JSC may have against the City shall be tolled and suspended from the date of this Agreement until October 1, 2025. Notwithstanding the foregoing, this Agreement may be terminated earlier than the aforementioned expiration date by either party by written notice given to the other party, which termination shall occur sixty (60) days after actual delivery of said written notice to the other party, via United States mail or Federal Express, with signed delivery confirmation, at the above-mentioned addresses in the preamble to this agreement. Said written notice to the City shall be to the attention of its mayor. Said written notice to JSC shall be to the attention of its chief executive officer. Either party may change the designated person(s) or addresses(es) above by written notice, delivered in the same manner as provided above, to the designated person(s) for the other party. 2. End of Tolling by Filing Action. Either at or prior to termination of this Agreement, either party may proceed in any action with the furtherance of their claims or defenses, and the tolling period will expire after the commencement of said action, meaning that the period of tolling will no longer count to further extend any applicable statute of limitations. 3. No Admission. Nothing contained in this Agreement shall be deemed or considered an admission, acknowledgement or concession as to any facts relating to any claims or potential claims and this Agreement shall not be permitted to be used in any way whatsoever as evidence in support of any such claims, but shall only be used to establish the terms of this Agreement. For purposes of this Agreement, both parties are deemed to fully deny any claims or defenses of the other party. 4. Additional Provisions. The following additional provisions are integral to this Agreement: (a) This Agreement shall be binding upon, and inure to the benefit of, the respective successors and permitted assigns of the parties. (b) Neither this Agreement nor any term or provision hereof may be changed, waived, discharged or terminated except by an instrument in writing duly signed by the party against whom the enforcement of the change, waiver, discharge, or termination is sought. (c) A duplicate or copy of this Agreement shall be deemed to be an original; furthermore, this Agreement may be executed by each parry upon a separate copy, and in such case, one counterpart of this Agreement shall consist of enough of such copies to reflect the signatures of all of the parties to this Agreement. (d) The singular form of words herein includes the plural and vice versa, the masculine form of words herein includes the feminine and vice versa, the capitalization of letters herein includes the lowercase and vice versa, the reference to either a person or an entity herein refers to all natural persons and also to sole proprietorships, corporations, partnerships, limited liability companies, or other business associations. (e) This Agreement and any dispute related to this Agreement and all rights, duties, and claims (whether contract, tort, statutory, regulatory, or any and all other claims) of all parties relating to the subject matter of this Agreement shall be governed by and construed under the laws of the Commonwealth of Kentucky. (f) If there is any dispute related to this Agreement then the parties agree that a court sitting in McCracken County, Kentucky shall have exclusive venue over any legal proceeding. IN WITNESS WHEREOF, the parties have hereunto set their hands by their duly authorized representatives on the date(s) below. JIM SMITH CONTRACTING COMPANY, LLC TITLE: COMMONWEALTH OF KENTUCKY ) ss. COUNTY OF ) Subscribed, sworn to and acknowledged before me by JIM SMITH CONTRACTING COMPANY, LLC by and through its duly authorized representative, , on this the day of , 2020. NOTARY PUBLIC STATE AT LARGE My commission expires: Notary ID Number: __i JSC TERMINAL, LLC d/b/a MIDWEST TERMINAL TITLE: COMMONWEALTH OF KENTUCKY ss. COUNTY OF Subscribed, sworn to and acknowledged before me by JSC TERMINAL, LLC d/b/a MIDWEST TERMINAL by and through its duly authorized representative, , on this the day of , 2020. CITY OF PADUCAH, KENTUCKY Title: COMMONWEALTH OF KENTUCKY ss. COUNTY OF McCRACKEN Subscribed, sworn to and acknowledged before me by CITY OF PADUCAH, KENTUCKY, by and through its duly authorized representative, on this the day of , 2020. My commission expires: Notary ID #