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HomeMy WebLinkAboutMINUTES - 10101995 - CS cs SUPPLEMENTAL CALENDAR OF CLOSED SESSION ITEMS FOR THE BOARD OF SUPERVISORS CONTRA COSTA COUNTY AND FOR SPECIAL DISTRICTS,AGENCIES,AND AUTHORITIES GOVERNED BY THE BOARD . BOARD CHAMBERS AND ROOM 105,ADMINISTRATION BUILDING, TUESDAY',OCTOBER 10, 1995 8:30 A.M.AND THEREAFTER DURING THIS REGULAR OCTOBER 10, 1995 MEETING A. EXISTING LITIGATION-CONFERENCE WITH LEGAL COUNSEL (LITIGATION HAS BEEN FORMALLY INITIATED,GOV,CODE.§54956.9(A).).CASES: 1. Dorothy Fellinger v.County.of Contra Costa, WCAB No.WCK 0004401 2. Anchor Glass v.County of Contra Costa, Sup.Ct. No.C94-00042 3. Acme Fill Corp.v.Althin CD Medical, Inc. Acme Fill Com.v.County of Contra Costa 4.. Margarita Carreon v.County of Contra Costa, Sup,Ct. No.95-03331 5. Waste Management v.County of Contra Costa B. CONFERENCE WITH LABOR NEGOTIATORS 1. Agengy Negotiators:Leslie Knight, Richard Heyne,and Keith Fleming(IEDA). Employee Organizations:Contra Costa County Employees'Assoc.,Local No. 1;AFSCME Locals 512 and 2700;.Calif.Nurses Assoc.(CNA);SEW and Social Services Union Local #535;C.C.C.Appraiser's Assn.;District Attorneys Inspectors Assoc.;Deputy Sheriffs Assn. (DSA); United Prof.Firefighters,Local 1230;Contra Costa Physicians Union;Western Council of Engineers;and Teamsters Local 314. 2. Agency Negotiator.Phil Batchelor Unrepresented Employees:.Social Service, Health Services,and Growth Management and Economic Development Agency Directors,and County Counsel. 3. Agee Negotiator Victor Westman Unrepresented Employee:County Administrator 4. Agency Negotiators: Leslie Knight and Lee Finney(IEDA) Employee Organizations:Contra Costa County Employees'Assoc., Local No. 1;AFSCME Loca12700. VJWgmm 10.10-95MMgmcs - 10.5-95 - �s COUNTY COUNSEL ' S OFFICE RECEIVED CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA WC 2 01995 Date: December 20 1995 LD OF SU+'Ea'. CONTRA COST�s Ce.: To: Jeanne Maglio, Chief Clerk of the Board of Supervisors From: Victor J. Westman, County Counsel By: Silvano B. Marchesi, Ass't County Counsel JDD B Re: Waste Management, Inc., et al. v. Contra Costa County, et al. In closed session on December 19, 1995, the Board of Supervisors voted to approve the enclosed settlement agreement in connection with the above lawsuit. The vote was as follows: Ayes: Bishop, Rogers, DeSaulnier Noes: None Abstain: None Absent: Smith, Torlakson Chair Bishop signed the agreement later in the day. We have received a faxed copy of a signature on behalf of Waste Management. Upon receipt of a hard copy, we will forward it to you for your file. Please sign each of the two enclosed agreements on behalf of Phil Batchelor. Also, please place copies of the agreement and this memo in the press box. Finally, please return one of the signed agreements to this office for transmittal to Waste Management. Thank you for your assistance. Enclosures SETTLEMENT AGREEMENT, MUTUAL RELEASE AND COVENANT NOT TO SUE This Settlement Agreement, Mutual Release and Covenant Not to Sue ("Agreement") is entered into by and between Waste Management, Inc. and Waste Management of California, Inc. (collectively "Waste Management") , on the one hand, and the County of Contra Costa, a political subdivision of the State of California, and Kenneth J. Corcoran as auditor-controller of the County (collectively "County") , on the other hand. Waste Management and County are sometimes referred to in this Agreement as the "Parties." RECITALS A. There is now pending in the Superior Court of the State of California, in and for the County of Contra Costa, an action entitled Waste Management, Inc. , and Waste Management of California, Inc. v. County of Contra Costa, et a1. , No. C 95- 00246 (the "Action",) . B. The Parties desire to compromise the Action completely between themselves without any admission of liability and to avoid the expense of further litigation. AGREEMENT 1 . This Agreement shall be effective on the date last executed by a Party. 2 . County shall pay to Waste Management, by check or warrant payable to Waste Management, Inc. and delivered to its counsel, the sum of Four Hundred Thousand Dollars ($400, 000) . Payment shall be delivered on or before December 28, 1995, or five working days after County receives proof of Waste Management' s execution of this Agreement, whichever is later. If County fails to make timely payment, County shall pay to Waste Management interest at the rate of 7% per annum, compounded annually, from December 28, 1995 until the date of payment. 3. Waste Management shall dismiss the Action as to all defendants with prejudice within five days of payment by the County pursuant to Section 2 . Waste Management hereby authorizes and directs its counsel to prepare, execute and file the dismissal with prejudice upon delivery of payment. 4 . Except for the ability to enforce this Agreement, each Party releases and forever discharges the other of and from and waives any and all claims, demands, controversies, actions, causes of action, obligations, damages and liabilities of any December 15, 1995 Settlement Agreement between Waste Management and County Page 2 of 5 nature whatsoever, whether at law or in equity that it ever had, now has, or that it may hereafter have against the other and that arise out of the subject matter of the Action. For purposes of this Agreement, "subject matter of the Action" means any and all matters relating to the Marsh Canyon Landfill, including the application for, processing, approval, administration and withdrawal of Land Use Permit No. 2020-89, including its conditions of approval and fees paid pursuant thereto, and related actions, such as the Marsh Canyon Landfill Franchise Agreement and the proposed March Canyon Landfill Development Agreement. However, this release and waiver does not include claims for nonpayment of taxes or other valid governmental assessments. 5. The waivers and releases in this Agreement include waivers and releases of any claims for costs, expenses and attorneys' fees, taxable and otherwise, incurred in or arising out of the prosecution or defense of the Action. The claims waived and released in this Agreement include claims that arise out of the subject matter of the Action against employees, agents, , officers, directors and partners of each Party in their individual capacities, as well as claims against the Parties . 6. Each Party understands that it may have sustained damages that may not have manifested themselves and are -presently unknown, or that may arise out of or relate to the subject matter of the Action. The waivers and releases in this Agreement include waivers and releases of any claims for those damages. The waivers and releases in this Agreement also include waivers and releases of any other claims for unknown or unanticipated injuries, losses, or damages arising out of or relating to the subject matter of the Action. 7 . Each Party waives, with respect to the subject matter of the Action, all rights or benefits that it has or may have under Section 1542 of the Civil Code of the State of California to the extent it would otherwise apply. Section 1542 reads as follows: A general release does not extend to claims .which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 8 . Each Party agrees- that it will not commence, maintain or December 15, 1995 Settlement Agreement between Waste Management and County Page 3 of 5 continue the prosecution by any other person or entity of any claim against the other, or any present or former employee of the other, relating to any matter waived or released in this Agreement. 9. Each Party declares that prior to the execution of this Agreement, it or its duly authorized representatives have apprised themselves of sufficient relevant data, either through experts or other sources of their own selection, in order that each Party might intelligently exercise its judgment in deciding whether to execute, and in deciding on the contents of, this Agreement. Each Party assumes the risk that facts, other than those facts that may be represented or warranted to be true in this Agreement or are now believed by it to be true,' may later be found to be other than or different from the facts now believed by it to be true. Each Party declares that its decision to execute this Agreement is not influenced by any representation not contained in this Agreement. Each Party has had this Agreement explained to it by its attorney, and each Party declares that it has executed this Agreement freely and voluntarily, with full knowledge of its significance and contents . 10. Neither the transfer of any consideration, the doing of any of the acts referred to in this Agreement, nor anything else contained in this Agreement shall be construed to be an admission on the part of any of the Parties of any liability for any claims asserted in the Action by any of the other Parties. The Parties deny all such claims. 11 . Each Party represents and warrants that it has the sole right and. exclusive authority to execute this Agreement, and that it has not sold,, assigned, transferred, conveyed, or otherwise disposed of any claim or demand against the other relating to any matter covered by this Agreement. Each Party represents that it is duly authorized to enter into this Agreement, and each person signing on behalf of an entity represents that he or she is duly authorized to sign on behalf of that entity. 12 . Each Party agrees that if it breaches any provision of this Agreement, it will indemnify and hold harmless each of the other Parties from and against any and all claims, demands, causes of action, obligations, damages and liabilities, including court or arbitration costs and attorneys` fees, arising from or in connection with that breach. December 15, 1995 Settlement Agreement between Waste Management and County Page 4 of 5 13. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California applicable to contracts between California residents made and to be performed in California. 14 . The Parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the Parties caused the uncertainty to exist. 15. This Agreement may be executed .in multiple counterparts, each of which shall be deemed an original, and counterpart signature pages may be assembled to form a single original document. The Parties agree that signatures received via facsimile transmission shall in all respects be deemed to be original signatures. 16. Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be _necessary or convenient to carry out its obligations under this Agreement. 17 . This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates and supersedes all prior understandings relating to them, whether written or oral . There are no obligations, commitments, representations or warranties relating to them except those expressly set forth in this Agreement. 18 . Nothing in this Agreement, whether express or implied, is intended to do any of the following: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any persons other than the express Parties to it, their respective permitted successors and assigns; (b) relieve or discharge the obligation or liability of any person not an express Party to this Agreement except as provided in section 5 above; or (c) give any person not an express Party to this Agreement any right of subrogation or action against any Party to this Agreement. December 15, 1995 Settlement Agreement between Waste Management and County Page 5 of 5 19. No amendment of, supplement to or waiver of any obligations under or provisions of this Agreement will be enforceable or admissible unless set forth in a writing signed by all Parties . Any waiver granted shall apply solely to the specific instance expressly stated. 20. If legal action or other proceeding is commenced as a result of a dispute which arises under or relates to any provision of this Agreement, all Parties shall pay their own attorneys' fees and expenses incurred in preparation for and conduct of that action or proceeding, appeal of judgment, and enforcement and collection of judgment. These fees and expenses include but are not limited to those spent on collection of the resulting judgment. All these fees and expenses shall be made part of any judgment entered as a result of any dispute arising under or relating to any provision of this Agreement. .21 . As used in this Agreement, the terms "it", "he", "his" or "him" refer to each Party regardless of whether the Party is a male, female, corporation, partnership or other entity. County of Contr Costa DATED: SFr, 1 ^ 195 By: Attest: Phil Batch ' ior, Clerk of the Board and County Administrator Approved as to Form: Victor J. Westman, County Counsel By: Waste Management, Inc. and Waste Management of California, Inc. DATED: By: Approved as to Form: McCUTCHEN, DOYLE, BROWN & ENERSON 26a:\stt11215.95f By December 15, 1995 t. RECEIVED COUNW COUNSEL'S OFFICE DEC 2119% CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. Date: December 21, 1995 To: Jeanne Maglio, Chief Clerk of the Board of Supervisors From: Victor J. Westman, County Counsel By: Lillian T. Fujii, Deputy County unsel Re: Waste Management, Inc., et al. v. Contra Costa County, et al. Concerning the settlement agreement approved by the Board in closed session on December 19, 1995, enclosed for your file is a hard copy of the agreement signed by Waste Management. The hard copy of the agreement signed by the Board Chair that you returned to us has been transmitted to Waste Management via its attorneys, McCutchen, Doyle, Brown & Enersen. Encl. SETTLEMENT AGREEMENT, MUTUAL RELEASE AND COVENANT . NOT TO SUE This Settlement Agreement, Mutual Release and Covenant Not to Sue ("Agreement") is entered into by and between Waste Management, Inc. and Waste Management of California, Inc. (collectively "Waste Management") , on the one hand, and the County of Contra Costa, a political subdivision of the State of California, and Kenneth J. Corcoran as auditor-controller of the County (collectively "County") , on the other hand. Waste Management and County are sometimes referred to in this Agreement as the "Parties . " RECITALS A. There is now pending in the Superior Court of the State of California, in and for the County of Contra Costa, an action entitled Waste Management, Inc. , and Waste Management of California, Inc. v. County of Contra Costa, et al . , No. C 95- 00246 (the "Action") . B. The Parties desire to compromise the Action completely between themselves without any admission of liability and to avoid the expense of further litigation. AGREEMENT 1 . This Agreement shall be effective on the date last executed by a Party. 2 . County shall pay to Waste Management, by check or warrant payable to Waste Management, Inc. and delivered to its counsel, the sum of Four Hundred Thousand Dollars ($400, 000) . Payment shall be delivered on or before December 28, 1995, or five working days after County receives proof of Waste Management' s execution of this Agreement, whichever is later. If County fails to make timely payment, County shall pay to Waste Management interest at the rate of 7% per annum, compounded annually, from December 28, 1995 until the date of payment. 3 . Waste Management shall dismiss the Action as to all defendants with prejudice within five days of payment by the County pursuant to Section 2 . Waste Management hereby . authorizes and directs its counsel to prepare, execute and file the dismissal with prejudice upon delivery of payment. 4 . Except for the ability to enforce this Agreement, each Party releases and forever discharges the other of and from and waives any and all claims, demands, controversies, actions, causes of action, obligations, damages and liabilities of any December 15, 1995 ORIGINAL Settlement Agreement between Waste Management and County Page 2 of 5 nature whatsoever, whether at law or in equity that it ever had, now has, or that it may hereafter have against the other and that arise out of the subject matter of the Action. For purposes of this Agreement, "subject matter of the Action" means any and all matters relating to the Marsh Canyon Landfill, including the application for, processing, approval, administration and withdrawal of Land Use Permit No. 2020-89, including its conditions of approval and fees paid pursuant thereto, and related actions, such as the Marsh Canyon Landfill Franchise Agreement and the proposed March Canyon Landfill Development Agreement . However, this release and waiver does not include claims for nonpayment of taxes or other valid governmental assessments . 5. The waivers and releases in this Agreement include waivers and releases of any claims for costs, expenses and attorneys` fees, taxable and otherwise, incurred in or arising out of the prosecution or defense of the Action. The claims waived and released in this Agreement include claims that arise out of the subject matter of the Action against employees, agents, officers, directors and partners of each Party in their individual capacities, as. well as claims against the Parties . 6. Each Party understands that it may have sustained damages that may not have manifested themselves and are presently unknown, or that may arise out of or relate to the subject matter of the Action. The waivers and releases in this Agreement include waivers and releases of any claims for those damages. The waivers and releases in this Agreement also include waivers and releases of any other claims for unknown or unanticipated injuries, losses, or damages arising out of or relating to the subject matter of the Action. 7 . Each Party waives, with respect to the subject matter of the Action, all rights or benefits that it has or may have under Section 1542 of the Civil Code of the State of California to the extent it would otherwise apply. Section 1542 reads as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. B . Each Party agrees that it will not commence, maintain or December 15, 1995 c. Settlement Agreement between Waste Management and County Page 3 of 5 continue the prosecution by any other person or entity of any claim against the other, or any present or former employee of the other, relating to any matter waived or released in this Agreement. 9. Each Party declares that prior to the execution of this Agreement, it or its duly authorized representatives have apprised themselves of sufficient relevant data, either through experts or other sources of their own selection, in order that each Party might intelligently exercise its judgment in deciding whether to execute, and in deciding on the contents of, this Agreement. Each Party assumes the risk that facts, other than those facts that may be represented or warranted to be true in this Agreement or are now believed by it to be true, may later be found to be other than or different from the facts now believed by it to be true. Each Party declares that its decision to execute this Agreement is not influenced by any representation not contained in this Agreement. Each Party has had this Agreement, explained to it by its attorney, and each Party declares that it has executed this Agreement freely and voluntarily, with full knowledge of its significance and contents . 10. Neither the transfer of any consideration, the doing of any of the acts referred to in this Agreement, nor anything else contained in this Agreement shall be construed to be an admission on the part of any of the Parties of any liability for any claims asserted in the Action by any of the other Parties . The Parties deny all such claims . 11 . Each Party represents and warrants that it has the sole right and exclusive authority to execute this Agreement, and that it has not sold, assigned, transferred, conveyed, or otherwise disposed of any claim or demand against the other relating to any matter covered by this Agreement. Each Party represents that it is duly authorized to enter into this Agreement, and each person signing on behalf of an entity represents that he or she is duly authorized to sign on behalf of that entity. 12 . Each Party agrees that if it breaches any provision of this Agreement, it will indemnify and hold harmless each of the other Parties from and against any and all claims, demands, causes of action, obligations, damages and liabilities, including court or arbitration costs and attorneys' fees, ,arising from or in connection with that breach. December 15, 1995 Settlement Agreement between Waste Management and County Page 4 of 5 13 . This Agreement shall be construed in accordance with, and governed by, the laws of the State of California applicable to contracts between California residents made and to be performed in California. 14 . The Parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the Parties caused the uncertainty to exist. 15. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and counterpart signature pages may be assembled to form a single original document. The Parties agree that signatures received via facsimile transmi-ssion shall in all respects be deemed to be original signatures . 16. ' Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement. 17 . This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates, and supersedes all prior understandings relating to them, whether written or oral . There are no obligations, commitments, representations or warranties relating to them except those expressly set forth in this Agreement. 18 . Nothing in this Agreement, whether express or implied, is intended to downy of the following: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any persons other than the express Parties to it, their respective permitted successors and assigns; (b) relieve or discharge the obligation or liability of any person not an express Party to this Agreement except as provided in section 5 above; or , (c) give any person not an express Party to this .Agreement any right of subrogation or action against any Party to this Agreement. December 15, 1995 Settlement Agreement between Waste Management and County Page 5 of 5 19. No amendment of, supplement to or waiver of any obligations under or provisions of this Agreement will be enforceable or admissible unless set. forth in a writing signed by all Parties . Any waiver granted shall apply solely to the specific instance expressly stated. 20 . If legal action or other proceeding is commenced as a result of a dispute which arises under or relates to any provision of this Agreement, all Parties shall pay their own attorneys ' fees and expenses incurred in preparation for and conduct of that action or proceeding, appeal of judgment, and enforcement and collection of judgment. These fees and expenses include but are not limited to those spent on collection of the resulting judgment. All these fees and expenses shall be made part of any judgment entered as a result of any dispute arising under or relating to any provision of this Agreement. 21 . As used in this Agreement, the terms "it", "he", "his" or "him" refer to each Party regardless of whether the Party is a. male, female, corporation, partnership or other entity. County of Contra Costa DATED: By: Attest: Phil Batchelor, Clerk of the Board and County Administrator By: Approved as to Form: Victor J. Westman, County Counsel By: Waste Management, Inc. and Waste Management of California, Inc. DATED: December 19, 1995 By P esi ent App ved as to Form: McCUTCHEN, DOYLE, BROWN & ENERSON 26a:\stt11215.95f B y: � December 15, 1995 COUNTY COUNSEL' S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: December 20, 1995 To: Jeanne Maglio, Chief Clerk of the Board of Supervisors From: --Victor J. Westman, County Counsel By: Silvano B. Marchesi, Ass't County Counsel Re: Waste Management, Inc., et al. v. Contra Costa County, et al. In closed session on December 19, 1995, the Board of Supervisors voted to approve the enclosed settlement agreement in connection with the above lawsuit. The vote was as follows: Ayes: Bishop, Rogers, DeSaulnier Noes: None Abstain: None Absent: Smith, Torlakson Chair Bishop signed the agreement later in the day. We have received a faxed copy of a signature on behalf of Waste Management. Upon receipt of a hard copy, we will forward it to you for your file., Please sign each of the two enclosed agreements on behalf of Phil Batchelor. Also please place copies of the agreement and this memo in the press box. Finally, please return one of the signed agreements to this office for transmittal to Waste Management. Thank you for your assistance. Enclosures COUNTY COUNSEL' S OFFICE RECEIVED CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA q [.L2 0 1995 Date: December 20, 1995CLE'�C OF SUPER CONTRA COSTA C(: To: Jeanne Maglio, Chief Clerk of the Board of Supervisors From: Victor J. Westman, County Counsel By: Silvano B. Marchesi, Ass't County Counsel'A V Re: Waste Management, Inc., et al. v. Contra Costa County, et al. In closed session on December 19, 1995, the Board of Supervisors voted to approve the enclosed settlement agreement in connection with the above lawsuit. The vote was as follows: Ayes: Bishop, Rogers, DeSaulnier Noes: None Abstain: None Absent: Smith, Torlakson Chair Bishop signed the agreement later in the day. We have received a faxed copy of a signature on behalf of Waste Management. Upon receipt of a hard copy, we will forward it to you for your file. Please sign each of the two enclosed agreements on behalf of Phil Batchelor. Also, please place copies of the agreement and this memo in the press box. Finally, please return one of the signed agreements to this office for transmittal to Waste Management. Thank you for your assistance. Enclosures SETTLEMENT AGREEMENT, MUTUAL RELEASE AND COVENANT NOT TO SUE This Settlement Agreement, Mutual Release and Covenant Not to Sue ("Agreement") is entered into by and between Waste Management, Inc. and Waste Management of California, Inc. (collectively "Waste Management") , on the one hand, and the County of Contra Costa, a political subdivision of the State of California, and Kenneth J. Corcoran as auditor-controller of the County (collectively "County") , on the other hand. Waste Management and County are sometimes referred to in this Agreement as the "Parties." RECITALS A. There is now pending in the Superior Court of the State of California, in and for the County of Contra Costa, an action entitled Waste Management, Inc. , and Waste Management of California, Inc. v. County of Contra Costa, et a1. , No. C 95- 00246 (the "Action") . B. The Parties desire to compromise the Action completely between themselves without any admission of liability and to avoid the expense of further litigation. AGREEMENT 1 . This Agreement shall be effective on the date last executed by a Party. 2. County shall pay to Waste Management, by check or warrant payable to Waste Management, Inc. and delivered to its counsel, the sum of Four Hundred Thousand Dollars ($400, 000) . Payment shall be delivered on or before December 28, 1995, or five working days after County receives proof of Waste Management's execution of this Agreement, whichever is later. If County fails to make timely payment, County shall pay to Waste Management interest at the rate of 7% per annum, compounded annually, from December 28, 1995 until the date of payment. 3. Waste Management shall dismiss the Action as to all defendants with prejudice within five days of payment by the County pursuant to Section 2. Waste Management hereby authorizes and directs its counsel to prepare, execute and file the dismissal with prejudice upon delivery of payment. • 4 . Except for the ability to enforce this Agreement, each Party releases and forever discharges the other of and from and waives any and all claims, demands, controversies, actions, causes of action, obligations, damages and liabilities of any December 15, 1995 Settlement Agreement between Waste Management and County Page 2 of 5 nature whatsoever, whether at law or in equity that it ever had, now has, or that it may hereafter have against the other and that arise out of the subject matter of the Action. For purposes of this Agreement, "subject matter of the Action" means any and all matters relating to the Marsh Canyon Landfill, including the application for, processing, approval, administration and withdrawal of Land Use Permit No. 2020-89, including its conditions of approval and fees paid pursuant thereto, and related actions, such as the Marsh Canyon Landfill Franchise Agreement and the proposed March Canyon Landfill Development Agreement. However, this release and waiver does not include claims for nonpayment of taxes or other valid governmental assessments. 5. The waivers and releases in this Agreement include waivers and releases of any claims for costs, expenses and attorneys' fees, taxable and otherwise, incurred in or arising out of the prosecution or defense of the Action. The claims waived and released in this Agreement include claims that arise out of the subject matter of the Action against employees, agents, •. officers, directors and partners of each Party in their individual capacities, as well as claims against the Parties. 6. Each Party understands that it may have sustained damages that may not have manifested themselves and are -presently unknown, or that may arise out of or relate to the subject matter of the Action. The waivers and releases in this Agreement include waivers and releases of any claims for those damages. The waivers and releases in this Agreement also include waivers and releases of any other claims for unknown or unanticipated injuries, losses, or damages arising out of or relating to the subject matter of the Action. 7 . Each Party waives, with respect to the subject matter of the Action, all rights or benefits that it has or may have under Section 1542 of the Civil Code of the State of California to the extent it would otherwise apply. Section 1542 reads as follows: A general release does not extend to claims .which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by hist must have materially affected his settlement with the debtor. 8. Each Party agrees that it will not commence, maintain or December 15, 1995 Settlement Agreement between Waste Management and County Page 3 of 5 continue the prosecution by any other person or entity of any claim against the other, or any present or former employee of the other, relating to any matter waived or released in this Agreement. 9. Each Party declares that prior to the execution of this Agreement, it or its duly authorized representatives have apprised themselves of sufficient relevant data, either through experts or other sources of their own selection, in order that each Party might intelligently exercise its judgment in deciding whether to execute, and in deciding on the contents of, this Agreement. Each Party assumes the risk that facts, other than those facts that may be represented or warranted to be true in this Agreement or are now believed by it to be true, may later be found to be other than or different from the facts now believed by it to be true. Each Party declares that its decision to execute this Agreement is not influenced by any representation not contained in this Agreement. Each Party has had this Agreement explained to it by its attorney, and each Party declares that it has executed this Agreement freely and voluntarily, with full knowledge of its significance and contents . 10. Neither the transfer of any consideration, the doing of any of the acts referred to in this Agreement, nor anything else contained in this Agreement shall be construed to be an admission on the part of any of the Parties of any liability for any claims asserted in the Action by any of the other Parties. The Parties deny all such claims . 11 . Each Party represents and warrants that it has the sole right and exclusive authority to execute this Agreement, and that it has not sold, assigned, transferred, conveyed, or otherwise disposed of any claim or demand against the other relating to any matter covered by this Agreement. Each Party represents that it is duly authorized to enter into this Agreement, and each person signing on behalf of an entity represents that he or she is duly authorized to sign on behalf of that entity. 12. Each Party agrees that if it breaches any provision of this Agreement, it will indemnify and hold harmless each of the other Parties from and against any and all claims, deipands, causes of action, obligations, damages and liabilities, including court or arbitration costs and attorneys' fees, arising from or in connection with that breach. December 15, 1995 Settlement Agreement between Waste Management and County Page 4 of 5 13. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California applicable to contracts between California residents made and to be performed in California. 14 . The Parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the Parties caused the uncertainty to exist. 15. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and counterpart signature pages may be assembled to form a single original document. The Parties agree that signatures received via facsimile transmission shall in all respects be deemed to be original signatures. 16. Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement. 17 . This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates> and supersedes all prior understandings relating to them, whether written or oral. There are no obligations, commitments, representations or warranties relating to them except those expressly set forth in this Agreement. 18 . Nothing in this Agreement, whether express or implied, is intended to do any of the following: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any persons other than the express Parties to it, their respective permitted successors and assigns; (b) relieve or discharge the obligation or liability of any person not an express Party to this Agreement except as provided in section 5 above; or (c) give any person not an express Party to this Agreement any right of subrogation or action against any Party to this Agreement. December 15, 1995 Settlement Agreement between Waste Management and County Page 5 of 5 19. No amendment of, supplement to or waiver of any obligations under or provisions of this Agreement will be enforceable or admissible unless set forth in a writing signed by all Parties. Any waiver granted shall apply solely to the specific instance expressly stated. 20. If legal action or other proceeding is commenced as a result of a dispute which arises under or relates to any provision of this Agreement, all Parties shall pay their own attorneys' fees and expenses incurred in preparation for and conduct of that action or proceeding, appeal of judgment, and enforcement and collection of judgment. These fees and expenses include but are not limited to those spent on collection of the resulting judgment. All these fees and expenses shall be made part of any judgment entered as a result of any dispute arising under or relating to any provision of this Agreement. 21 . As used in this Agreement, the terms "it", "he", "his" or "him" refer to each Party regardless of whether the Party is a male, female, corporation, partnership or other entity. County of Contr Costa --"DATED: nFr, 1 � X995 By: �- �/ Attest: Phil Batch4g. or, Clerk of the Board and County Administrator By:� Approved as to Form: Victor J. Westman, County Counsel By: Waste Management, Inc. and Waste Management of California, Inc. DATED: By: Approved as to Form: McCUTCHEN, DOYLE, BROWN & ENERSON 26a:\stt11215.95f By December 15, 1995