HomeMy WebLinkAbout11-006 - US Army Corps of Engineers - Tolling Agreement (Southcenter Parkway Extension / Tukwila South Levee) 11-006
Council Approval NIA
C I TOLLING AGREEMENT
WHEREAS, the United States of America, on behalf of the United States Army Corps of
Engineers (Corps) may file a complaint against the City of Tukwila "potential defendant(s)")
for, inter alia, alleged violations of Sections 301(a), 309, 404 of the Clean Water Act
"CWA 33 U.S.C. Sections 1311(a), 1319, 1344 and /or Section 9, 10, or 13 of the Rivers
and Harbors Act of 1899, 33 U.S.C. Sections 401, 403, or 407, and/or Ocean Dumping Act
Sections 101 and /or 103 (33 U.S.C. 1411, 1413), at a site commonly known as the Southcenter
Parkway Extension Proiect.
WHEREAS, the purpose of any such complaint would be to obtain appropriate injunctive
relief and to impose appropriate civil or criminal penalties for potential defendant'(s) alleged
violations of the statute(s) cited above;
WHEREAS, the Corps accepted an after the -fact (ATF) permit application from the
potential defendant(s) in an attempt to settle the above claims;
WHEREAS, both parties believe that their interests will best be served by continuing the
ATF pelinit process without the disruption that might be occasioned should the United States file
a complaint in the immediate future;
AND WHEREAS both parties acknowledge the requirement found at 33 C.F.R.
331.11(c) for an applicant for an ATF permit to provide a signed tolling agreement;
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THEREFORE, the United States and potential defendant(s) stipulate and agree as
follows:
1. The United States and potential defendant(s) agree that the time between the
acceptance by the Corps of the ATF permit application and the final Corps decision (as defined at
33 CFR 331.10), plus one year thereafter, will not be included in calculating any statute of
limitations that might be applicable to the alleged statutory violation(s) described above.
Potential defendants agree not to assert, plead, or raise in any fashion on behalf of any party,
whether by answer, motion, or otherwise, any defense or avoidance based on the running of any
statute of limitations that may apply during that period or any defense or avoidance based on
laches or other principle concerning the timeliness of commencing a civil action, based on the
failure of the United States to file its complaint during that period.
2. Potential defendants further agree not to transfer the property in question during the
pendency of this tolling agreement nor during the pendency of any civil action brought as
described above, without first notifying the United States and giving the United States a
reasonable opportunity to oppose such transfer.
3. Nothing in this tolling agreement shall restrict or otherwise prevent the United States
from filing a complaint regarding any alleged statutory violation(s) not described above, at any
time.
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4. This tolling agreement does not constitute any admission of liability on the part of
potential defendants; nor does it constitute any admission or acknowledgment on the part of the
United States that any statute of limitations has run or that any statute of limitations is applicable
to the statutory claims described above.
5. This tolling agreement contains the entire agreement between the parties, and no
statement, promise or inducement made by any party to this agreement, or any agent of such
parties, that is not set forth in this agreement shall be valid or binding. This tolling agreement
may not be enlarged, modified or altered except in writing signed by the parties. This tolling
agreement may be executed in counterparts.
FOR the United States of America:
Siri C. Nelson DATE
District Counsel
Seattle District, U.S. Army Corps of Engineers
FOR "potential defendants)
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Ji _gerton o
Cii of Tukwila DATE
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