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Port of Vancouver, USA v. Metro Metals Northwest, Inc.

United States District Court, W.D. Washington, Tacoma

October 17, 2019

PORT OF VANCOUVER, USA, Plaintiff,
v.
METRO METALS NORTHWEST, INC., and PACIFIC COAST SHREDDING LLC, Defendants.

          ORDER

          Ronald B. Leighton, United States District Judge.

         THIS MATTER is before the Court on the parties' cross motions for summary judgment. [Dkt. #s 70 & 75]. This case arises out of the use, maintenance and repair of a dock (Terminal 2, Berth 2, or T2B2) on the Columbia River. The Port of Vancouver built T2B2 in 2000, and since 2004 has leased it to Defendant Metro Metals[1] to export scrap metal. The dock is designed to support large shoreside cranes and has a concrete surface able to support a 1000 pound per square inch live load, rather than the more typical 750 psi. This case arises from damage to that concrete surface, and the issue is which party is responsible for the cost of its repair.

         A. Background.

         Metro began exporting heavy scrap metal from the dock in 2007. By November 2009, both parties wanted Metro to export additional scrap from the wharf and entered into a “Shred Berm Expansion and Repair Agreement” designed to facilitate such an increase. The Agreement provided for a re-arrangement and enlargement of the upland area used to stage scrap for loading onto ships from the dock (revisions “inside the berm”); provided for a minimum annual export amount, and a revised wharfage fee calculation (the amount paid by Metro to the Port for the use of T2B2); and articulated the parties' respective financial, operation and maintenance responsibilities. Of specific import here is the list of the tenant's repair obligations:

- Metro Metals responsibilities:
- Repair damage to the terminal areas used for scrap steel operations. The Port will determine the extent of repair based on initial condition of damaged areas.
- Provide asphalt as required, initially and In the future, to protect scrap steel operational areas.
- Repair Port areas damaged by tracked equipment. The Port requires that tracked equipment be moved into the Terminal 2 storage area by truck - not by driving it across the terminal area.
- Operate and maintain storm water treatment facility for scrap steel operational area.
- Pay for terminal modifications as a result of berm extension. A list of these modifications Is attached as Exhibit 2 to this agreement.
- Agree to follow BMPs as may be amended by the parties from time to time.

[Stadler Dec Ex 4; Dkt. # 77]. The Agreement included two exhibits, one of which spelled out in more detail the amounts the parties were going to spend to implement the new arrangement. It included a requirement that Metro repair the existing concrete surfaces damaged by its shredding activities:

Repair existing concrete and asphalt surfaces damaged by shred activities

Metro Metals

$90, 000 est.


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