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HomeMy WebLinkAboutMINUTES - 11191996 - C23 TO: BOARD OF SUPERVISORS FROM: Victor J. Westman, County Counsel By: Silvano B. Marchesi, Asst County Counsel DATE: November 19, 1996 SUBJECT: Settlement Agreements with County's Former Insurance Carriers to Resolve County' s Claims in Connection with Its Expenses Incurred in Acme Fill Corporation v. Althin CD Medical, Inc., et al . , and Acme Fill Corporation v. County of Contra Costa SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Approve and authorize the Chair, Board of Supervisors, to execute settlement agreements with Pacific Indemnity Company and Federal Insurance Company, National Security Fire and Casualty Company, National Indemnity Company, and (subject to approval by County Counsel) Providence Washington Insurance Company. FISCAL IMPACT Approval of subject settlement agreements will provide revenue to the County in the total amount of $1, 289, 309 . BACKGROUNDIREASONS FOR RECOMMENDATIONS The County' s defense against two lawsuits brought by Acme Fill Corporation, and settlement negotiations to resolve those lawsuits, necessitated special counsel. During a portion of the period of time in dispute, the County was covered by insurance policies. In order to avoid litigation with its former insurance carriers, the County has been negotiating with them for recovery of a significant portion of the County's expenditures. In July 1996 the Board authorized its negotiators to settle for a total of not less than $1.2 million. CONTINUED ON ATTACHMENT: X YES SIGNATURE� RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON Nov 19 1996 APPROVED AS RECOMMENDEDy1 OTHER VOTE OF SUPERVISORS / I HEREBY CERTIFY THAT THIS IS A / UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF' SUPERVISORS ON THE DATE SHOWN. Orig: County Counsel ATTESTED 19 is CC: County Administrator PHIL BATCHELOR, CLERK OF Joe Tonda, Risk Manager THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR BYJ1 A , DEPUTY CONTACT: Silvano Marchesi, 335-1810 HAS MARC\O E N E RAL\AC M E.O RD G 23 SUBJECT: Settlement Agreements with County' s Former Insurance Carriers to Resolve County's Claims in Connection with Its Expenses Incurred in Acme Fill Corporation -v. Althin CD Medical, Inc., et al . , and Acme Fill Corporation v. County of Contra Costa The County's former insurance carriers have agreed to settlements in the following amounts: Pacific Indemnity Insurance Company: $870, 000 National Security Fire & Casualty Company: $151,270 National Indemnity Insurance Company: $138, 039 Providence Washington Insurance Company: $130, 000 Total: $1, 289 , 309 A signed agreement with Providence Washington Insurance Company has not been received as of the submission of this report, but the company has agreed orally to a settlement agreement identical with that of each of the other carriers. Staff therefore recommends approval of this agreement, subject to determination by County Counsel that it is in proper form and has been executed by the appropriate company representative. 2 SETTLEMENT AGREEMENT This Settlement Agreement (hereinafter "AGREEMENT") is intended to become effective as of the latest date appearing on the signature page, and has been agreed to and entered into by each party hereto in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. PARTIES The parties to this AGREEMENT are: 1. The County of Contra Costa, a political subdivision of the State of California (hereinafter referred to as "COUNTY") . 2 . National Security Fire and Casualty Company, a corporation located in the State of Alabama (hereinafter referred to as "National Security") . RECITALS A. WHEREAS, COUNTY has been subjected to alleged demands, actions, lawsuits, orders, and/or administrative proceedings which have been or which are likely to be asserted against it, arising out of or relating to a landfill site on property adjacent to Waterbird Way in Martinez, California, in the unincorporated portion of the COUNTY, commonly known as the Acme Landfill and consisting of three landfill parcels and other real property (hereinafter referred to as the "SITE") . The SITE LAX2:146624.3 contains three parcels commonly known as the North, South, and East Parcels. B. WHEREAS, COUNTY has been named as a defendant in pending lawsuits relating to the SITE identified as Acme Fill Corporation v. Althin CD Medical, Inc. , et al. , United States District Court, Northern District of California, Case Number C91 4268 MMC, and as Acme Fill Corporation v. Contra Costa County, Superior Court of the State of California in Contra Costa County, Case Number C93-02532 (hereinafter collectively referred to as the "LAWSUITS") . C. WHEREAS, COUNTY has notified National Security of its involvement at the SITE, and in the LAWSUITS identified above, and COUNTY has requested that National Security extend INSURANCE COVERAGE to it pursuant to a policy of insurance, identified as: 1. Policy number VG 26028, issued by National Security to COUNTY with effective dates of November 5, 1975 through November 5, 1976. D. WHEREAS, National Security has conducted a diligent search of its records and files and has located all evidence of any insurance policy issued to COUNTY. E. WHEREAS, "THE POLICY" as used in this AGREEMENT shall include the insurance policy identified in Recitals "C" above, and shall further include any insurance policy, known or unknown, which may have been issued to COUNTY by National Security. LAX2A46624.3 -2- F. WHEREAS, "INSURANCE COVERAGE" as used in this AGREEMENT shall include any obligation, duty or liability of any kind contained in, arising out of, as the result of, or in any way connected with THE POLICY. G. WHEREAS, certain disputes have arisen between the parties to this AGREEMENT relating to various questions of INSURANCE COVERAGE pertaining to their respective rights and duties under THE POLICY, and National Security contends that there is no coverage for any of the past, present and/or future claims asserted against COUNTY with respect to the SITE. H. WHEREAS, it is understood and agreed by the parties that it is the object and intent of this AGREEMENT to include and conclude any and all claims of potential involvement regarding personal or bodily injuries, property damage, investigation, remediation, defense, response or cleanup responsibility, indemnity, or contribution, arising out of or in any way connected with the SITE for INSURANCE COVERAGE of any kind under THE POLICY. I. WHEREAS, the parties hereto wish to resolve fully and finally, as between themselves, all disputes which now exist or which in the future may arise with respect, to the application and the extent of any INSURANCE COVERAGE arising out of or in any way connected with the SITE under THE POLICY. LAX2:146624.3 -3- AGREEMENT •NOW, THEREFORE, in consideration of and in reliance upon the recitals, promises, covenants, understandings, and obligations hereinbefore and hereinafter set forth, the parties hereto mutually agree as follows: 1. Payment by National Becurity Concurrent with the execution of this AGREEMENT, National Security will ,pay the total sum of one hundred fifty-one thousand two hundred sixty-nine dollars and seventy-three cents ($151, 269.73) to COUNTY. This payment shall constitute full and complete settlement of all past, present, future and potential claims, whether known or unknown, or to be subsequently discovered or to subsequently occur, by COUNTY for INSURANCE COVERAGE arising out of or in any way connected with the SITE from National Security under THE POLICY. 2. Releases (a) COUNTY shall and hereby does fully and forever release and discharge National Security and all of National Security's past and present officers, directors, employees, representatives, shareholders, attorneys, successors and assigns, of and from any and all claims, actions, demands, suits, causes of action, rights, liabilities, contracts, duties and obligations, of every kind and nature whatsoever, whether known or unknown, past, present and future, arising out of, as a result of, or in any way connected with the SITE under the POLICY. COUNTY shall and hereby does fully and forever release LAx2:146624.3 -4- and discharge National Security from any claims for defense or indemnity relating to the SITE arising out of any and all insurance POLICY issued to the COUNTY by National Security including, but not limited to, those described in Recital "C" to this AGREEMENT. (b) National Security shall and hereby does fully and forever release and discharge COUNTY and all of COUNTY's past and present officers, directors, employees, representatives, shareholders, attorneys, successors and assigns, of and from any and all claims, actions, demands, suits, causes of action, rights, liabilities, contracts, duties and obligations., of every kind and nature whatsoever, whether known or unknown, past, present and future, arising out of, as a result of, or in any way connected with the SITE under the POLICY. 3. Waiver of Subrogation, Contribution, and Indemnification Rights National Security hereby waives any and all subrogation, contribution, and indemnification rights it.may have, by reason of entering into this AGREEMENT and making payment herein provided or by reason of any contract relating to insurance coverage provided by National Security to COUNTY, against any other insurer with respect to the SITE; provided the insurance company has entered into a similar agreement with COUNTY and which agreement contains a waiver of subrogation, contribution and indemnification rights in substance and effect the same as the waiver herein. LAX2:146624.3 -5 4. Waiver of California Civil Code Section 1542 COUNTY and National Security acknowledge that they are both familiar with the provisions of California Civil Code section 1542 which provides: "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. " Being aware of California Civil Code section 1542, COUNTY and National Security hereby expressly waive any rights that they may have against the other under this law, as well as any other statutes or common law principles of similar effect in connection with the SITE. 5. Representations By COUNTY (a) COUNTY represents and warrants that it has not and will not in any manner assign, transfer, convey, sell or purport to assign, transfer, convey or sell to any entity or person any cause of action, chose in action, or part thereof, arising out of or connected with the matters released herein. (b) COUNTY represents and warrants that it will not in any way voluntarily assist any other person or entity in the establishment of any claim, action, right or cause of action against National Security which in any way relates to THE POLICY LAX2:146624.3 -6- or to the investigation, handling, defense or settlement of any claims related to the SITE. (c) COUNTY represents and warrants that it has no knowledge of any lawsuits against it relating to the SITE except as described in Recital "B" of this AGREEMENT. 6. Representations By National Security (a) National Security represents and warrants that it has not and will not in any manner assign, transfer, convey, sell or purport to assign, transfer, convey or sell to any entity or person any cause of action, chose in action, or part thereof, arising out of or connected with the matters released herein. (b) National Security represents and warrants that it will not in any way voluntarily assist any other person or entity in the establishment of any claim, action, right or cause of action against COUNTY which in any way relates to THE POLICY or to the investigation, handling, defense or settlement of any claims related to the SITE. (c) National Security has conducted a diligent search of its records and files and has located all evidence of any insurance policy issued to COUNTY. 7. No Admissions (a) This AGREEMENT is the result of a compromise and accord, and shall not be considered an admission of coverage, liability or responsibility by either COUNTY or National Security. LAX2:146624.3 -7- (b) In particular, and without limitation, nothing contained herein constitutes an admission by National Security that COUNTY is entitled to any INSURANCE COVERAGE in connection with any environmental claims, or any settlement thereof, or with respect to any other matter, under any policy of insurance which may have been issued by National Security to COUNTY. 8. No Precedent This AGREEMENT will be without precedential value and is not intended to, nor shall it be construed as an interpretation of any insurance policy, and shall not be used as evidence, or in any other manner, in any court or dispute resolution proceeding to create, prove or interpret the obligations of National Security under any insurance policy issued to COUNTY. 9. No Rights Conferred Upon Non-Parties This AGREEMENT is intended to confer rights and benefits only on the signatories hereto and is not intended to confer any right or benefit upon any other person or entity. No person or entity other than the signatories hereto shall have any legally enforceable right under this AGREEMENT. All rights of action for any breach of this AGREEMENT are specifically reserved to the signatories hereto. LAX2:146624.3 -8- 10. Construction of AGREEMENT This AGREEMENT shall not be interpreted according to the rules of construction applicable to insurance contracts. This AGREEMENT is the product of arms length negotiations between the parties, and no party shall be deemed to be the drafter of this AGREEMENT, nor shall any part of this AGREEMENT be construed against any party on the basis of that party's identity as an insurance company or a drafter of any part of this AGREEMENT. In the event of uncertainty in the terms of this AGREEMENT, such uncertainty shall be resolved fairly and in accordance with the intent of the parties as set forth herein and without regard as to who caused the uncertainty to exist. 11. Entire AGREEMENT This AGREEMENT is an integrated AGREEMENT and contains the entire AGREEMENT between the signatories hereto. No representations, warranties, or promises have been made or relied upon by any signatory hereto other than as set forth herein. This AGREEMENT supersedes and controls any and all prior communications between the parties or their representatives relative to the matters contained herein. 12. Governing Law This AGREEMENT shall be interpreted and enforced pursuant to the laws of the State of California. LAX2:146624.3 -9- C 13. No Modifications Neither this AGREEMENT nor any term, provision, covenant, or condition contained herein, may be amended, changed, altered, modified or waived, except by an express instrument in writing signed by the parties hereto. 14'. Binding Effect Each of the terms of this AGREEMENT is binding upon each of the signatories hereto, their respective predecessors, successors, representatives, principals, agents, officers, directors, employees, transferees and assigns. 15. Warranty of Capacity to Execute the AGREEMENT (a) COUNTY represents and warrants to National Security that the execution and delivery of this AGREEMENT has been duly and validly authorized and approved by all requisite action required under applicable law and that no further action is necessary to make this AGREEMENT and all transactions contemplated hereby valid and binding on COUNTY in accordance with the terms hereof. (b) National Security represents and warrants to COUNTY that the execution and delivery of this AGREEMENT has been duly and validly authorized and approved by all requisite corporate action and that no further action is necessary to make this AGREEMENT and all transactions contemplated hereby valid and binding on National Security in accordance with the terms hereof. L.AX2:146624.3 -10- cr a�3 (c) Each party further represents and warrants to the other that each has the sole right and exclusive authority to execute this AGREEMENT and pay or receive the sums specified herein and that the party has not sold, signed, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this AGREEMENT, except that National Security may have entered into reinsurance agreements which are relevant to the obligations referred to in this AGREEMENT. 16. Counterparts This AGREEMENT may be signed in counterparts and shall become effective upon its execution by the parties hereto, each copy having the same force and effect as an original. LAX2:146624.3 11 IN WITNESS WHEREOF, the parties hereto warrant that they have read all of this AGREEMENT and fully understand everything contained therein. Each party represents that the party is represented by counsel and fully and freely assents to all terms of the AGREEMENT. DATED: �-f/1 �9 /Sp THE COUNTY OF CONTRA COSTA By: Its: L�lSS1� [PLEASE TYPE TITLE AND NAME] DATED: r� ' $, 1 `i°i (. NATIONAL SECURITY FIRE AND CASUALTY COMPANY B • Its: P esident J. R. Brunson, President [PLEASE TYPE TITLE AND NAME] LAX2:146624.3 -12- ll, 1 1 SETTLEMENT AGREEMENT This Settlement Agreement (hereinafter "AGREEMENT" ) is intended to become effective as of the latest date appearing on the signature page, and has been agreed to and entered into by each party hereto in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. PARTIES The parties to this AGREEMENT are : 1 . The County of Contra Costa, a political subdivision of the State of California (hereinafter referred to as "COUNTY" ) . COUNTY also includes all other persons or entities claiming any right as an insured, named insured, additional insured, loss payee or assignee under THE POLICY. 2 . National Indemnity Company, a corporation located in the State of Nebraska (hereinafter referred to as "National Indemnity" ) . RECITALS A. WHEREAS, COUNTY has been subjected to alleged demands, actions, lawsuits, orders, and/or administrative proceedings which have been or which are likely to be asserted against it, arising out of or relating to a landfill site on property adjacent to Waterbird Way in Martinez, California, in the unincorporated portion of the COUNTY, commonly known as the Acme Landfill and consisting of three landfill parcels and other real property including any property adjacent to or in the immediate proximity to the Acme Landfill as well as the atmosphere, groundwater or surface water affected on or by said property (hereinafter referred to as the "SITE" ) . The SITE contains three parcels commonly known as the North, South, and East Parcels . B. WHEREAS, COUNTY has been named as a defendant in pending lawsuits relating to the SITE identified as Acme Fill Corporation v. Althin CD Medical, Inc . , et al . , United States District Court, Northern District of California, Case Number C91 4268 MMC, and as Acme Fill Corporation v. Contra Costa County, Superior Court of the State of California in Contra Costa County, Case Number C93 02532 (hereinafter collectively referred to as the "LAWSUITS" ) . C. WHEREAS, COUNTY has notified National Indemnity of its involvement at the SITE, and in the LAWSUITS identified above, and COUNTY has requested that National Indemnity extend INSURANCE COVERAGE to it pursuant to a policy of insurance, identified as : 1 . Policy number PE 040001, issued by National Indemnity to COUNTY with effective dates of July 1, 1973 through July 1, 1976 and canceled on July 1, 1974 . D. WHEREAS, National Indemnity has conducted a diligent search of its records and files and has located all evidence of any insurance policy issued to COUNTY. E. WHEREAS, "THE POLICY" as used in this AGREEMENT -2- shall include the insurance policy identified in the paragraph entitled Recitals C. l . , and shall further include any other insurance policy, known or unknown, which may have been issued to COUNTY by National Indemnity. F. WHEREAS, "INSURANCE COVERAGE" as used in this AGREEMENT shall include any alleged obligation, duty or liability of any kind contained in, arising out of, as the result of, or in any way connected with THE POLICY. G. WHEREAS, certain disputes have arisen between the parties to this AGREEMENT relating to various questions of INSURANCE COVERAGE pertaining to their respective rights and duties under THE POLICY, and National Indemnity contends that there is no coverage for any of the past, present and/or future claims asserted against COUNTY with respect to the SITE. H. WHEREAS, it is understood and agreed by the parties that it is the object and intent of this AGREEMENT to include and conclude any and all claims of any kind including, but not limited to, potential involvement regarding personal or bodily injuries, property damage, investigation, remediation, defense, response or cleanup responsibility, indemnity, or contribution, arising out of or in any way connected with the SITE. I . WHEREAS, the parties hereto wish to resolve fully and finally, as between themselves, all disputes which now exist or which in the future may arise with respect to the application and the extent of any INSURANCE COVERAGE arising out of or in any -3- way connected with the SITE. AGREEMENT NOW, THEREFORE, in consideration of and in reliance upon the recitals, promises, covenants, understandings, and obligations hereinbefore and hereinafter set forth, the parties hereto mutually agree as follows : 1. Payment by National Indemnity Concurrent with the execution of this AGREEMENT, National Indemnity will pay the total sum of one hundred thirty- eight thousand thirty-eight dollars and sixty-seven cents ($138 , 038 . 67) to COUNTY. This payment shall constitute full and complete settlement of all past, present, future and potential claims, whether known or unknown, or to be subsequently discovered or to subsequently occur, by COUNTY for INSURANCE COVERAGE arising out of or in any way connected with the SITE. Payment shall be by draft . The draft shall be made payable to COUNTY OF CONTRA COSTA and its attorney, TIMOTHY V. P. GALLAGHER. 2 . Releases (a) COUNTY shall and hereby does fully and forever release and discharge National Indemnity and all of National Indemnity' s past, present and future officers, directors, employees, representatives, shareholders, attorneys, successors, assigns, subsidiaries, affiliates, and parents from any and all claims, actions, demands, suits, causes of action, rights, liabilities, contracts, duties and obligations, of every -4- kind and nature whatsoever, whether known or unknown, past, present and future, for damages or relief of any kind, including but not limited to defense, indemnity, punitive damages, attorney fees, violation of any state or federal statute or regulation, including any claim of bad faith or improper claims handling or alleged wrong doing of any kind, arising out of, as a result of, or in any way connected with SITE. (b) National Indemnity shall and hereby does fully and forever release and discharge COUNTY and all of COUNTY' S past, present, and future officers, directors, employees, representatives, shareholders, attorneys, successors and assigns, from any and all claims, actions, demands, suits, causes of action, rights, liabilities, contracts, duties and obligations, of every kind and nature whatsoever, whether known or unknown, past, present and future, for damages or relief of any kind arising out of, as a result of, or in any way connected with the SITE. 3 . Waiver of Subroctation, Contribution, and Indemnification Rights National Indemnity hereby waives any and all subrogation, contribution, and indemnification rights it may have, by reason of entering into this AGREEMENT and making payment herein by reason of any contract relating to INSURANCE COVERAGE provided by National Indemnity to COUNTY, against any other insurer with respect to the SITE; provided the insurance company has entered into a similar agreement with COUNTY and -5- which agreement contains a waiver of subrogation, contribution and indemnification rights in substance and effect the same as the waiver herein. 4 . Waiver of California Civil Code Section 1542 COUNTY and National Indemnity acknowledge that they are both familiar with the provisions of California Civil Code section 1542 which provides : "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. " Being aware of California Civil Code section 1542 and being advised by independent counsel of their own choice regarding the meaning and effect of Section 1542 , COUNTY and National Indemnity hereby expressly waive any rights that they may have against the other under this law, as well as any other statutes or common law principles of similar effect in connection with the SITE. 5. Representation BY COUNTY (a) COUNTY represents and warrants that it has not and will not in any manner assign, transfer, convey, sell or purport to assign, transfer, convey or sell to any entity or person any cause of action, chose in action, or part thereof, arising out of or connected with the matters released herein. (b) COUNTY represents and warrants that it will not in any way voluntarily assist any other person or entity in -6- the establishment of any claim, action, right or cause of action against National Indemnity which in any way relates to THE POLICY or to the investigation, handling, defense or settlement of any claims related to the SITE. (c) COUNTY represents and warrants that it has no knowledge of any lawsuits against it relating to the SITE except as described in Recital B. of this AGREEMENT. 6 . Representations By National Indemnity (a) National Indemnity represents and warrants that it has not and will not in any manner assign, transfer, convey, sell or purport to assign, transfer, convey or sell to any entity or person any cause of action, chose in action, or part thereof, arising out of or connected with the matters released herein. (b) National Indemnity represents and warrants that it will not in any way voluntarily assist any other person or entity in the establishment of any claim, action, right or cause of action against COUNTY which in any way relates to THE POLICY or to the investigation, handling, defense or settlement of any claims related to the SITE. 7 . No Admissions (a) This AGREEMENT is the result of a compromise, and accord, and shall not be considered an admission of coverage, liability or responsibility by either COUNTY or National Indemnity. (b) In particular, and without limitation, -7- nothing contained herein constitutes an admission by National Indemnity that COUNTY is entitled to any INSURANCE COVERAGE in connection with any environmental claims, or any settlement thereof, or with respect to any other matter, under any policy of insurance which may have been issued by National Indemnity to COUNTY. 8 . No Precedent This AGREEMENT will be without precedential value and is not intended to, nor shall it be construed as an interpretation of any insurance policy, and shall not be used as evidence, or in any other manner, in any court or dispute resolution proceeding to create, prove or interpret the obligations of National Indemnity under any insurance policy issued to COUNTY or any other person or entity. 9 . Construction of AGREEMENT This AGREEMENT shall not be interpreted according to the rules of construction applicable to insurance contracts . This AGREEMENT is the product of arms length negotiations between the parties, and no party shall be deemed to be the drafter of this AGREEMENT, nor shall any part of this AGREEMENT be construed against any party on the basis of that party' s identity as an insurance company or a drafter of any part of this AGREEMENT. In the event of uncertainty in the terms of this AGREEMENT, such uncertainty shall be resolved fairly and in accordance with the intent of the parties as set forth herein and without regard as to who caused the uncertainty to exist . -8- 10 . Entire Acrreement. This AGREEMENT is an integrated agreement and contains the entire agreement between the signatories hereto. No representations, warranties, or promises have been made or relied upon by any signatory hereto other than as set forth herein. This AGREEMENT supersedes and controls any and all prior communications between the parties or their representatives relative to the matters contained herein. 11. Governing Law This AGREEMENT shall be interpreted and enforced pursuant to the laws of the State of California. 12 . No Modifications Neither this AGREEMENT nor any term, provision, covenant, or condition contained herein, may be amended, changed, altered, modified or waived, except by an express instrument in writing signed by the parties hereto. 13 . Binding Effect Each of the terms of this AGREEMENT is binding upon each of the signatories hereto, their respective predecessors, successors, representatives, principals, agents, officers, directors, employees, transferees and assigns . 14 . Warranty of Capacity to Execute the AGREEMENT (a) COUNTY represents and warrants to National Indemnity that the execution and delivery of this AGREEMENT has been duly and validly authorized and approved by all requisite -9- action required under applicable law and that no further action is necessary to make this AGREEMENT and all transactions contemplated hereby valid and binding on COUNTY in accordance with the terms hereof . (b) National Indemnity represents and warrants to COUNTY that the execution and delivery of this AGREEMENT has been duly and validly authorized and approved by all requisite corporate action and that no further action is necessary to make this AGREEMENT and all transactions contemplated hereby valid and binding on National Indemnity in accordance with the terms hereof . (c) Each party further represents and warrants to the other that each has the sole right and exclusive authority to execute this AGREEMENT and pay or receive the sums specified herein and that the party has not sold, signed, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this AGREEMENT, except that National Indemnity may have entered into reinsurance agreements which are relevant to the obligations referred to in this AGREEMENT. 15 . Confidentiality The parties agree not to divulge either this AGREEMENT or any of its terms, for a period of three (3) years from the effective date of this AGREEMENT, to any person or entity except that this AGREEMENT and its terms may be disclosed: (a) as required by operation of law or court order; (b) to any -10- insurer or reinsurer of National Indemnity in connection with insurance or reinsurance obligations; (c) to any parent or affiliated company of National Indemnity; (d) to the accountants, auditors or regulators of COUNTY or National Indemnity; (e) in any action or proceeding where the existence or terms of this AGREEMENT are at issue or (f) by written agreement of all the parties . If this agreement or its terms are disclosed as provided herein above, the party disclosing such information shall advise the recipient of the confidentiality provisions of this paragraph. 16. Counterparts This AGREEMENT may be signed in counterparts and shall become effective upon its execution by the parties hereto, each copy having the same force and effect as an original . IN WITNESS WHEREOF, the parties hereto warrant that they have read all of this AGREEMENT and fully understand everything contained therein. Each party represents that the party is represented by counsel and fully and freely assents to all terms of the AGREEMENT. DATED: 121 k-llt .•c.P,_e,.0 ( g� THE COUNTY OF CONTRA COSTA By: Its• Q'r or 5;VVt T f-A [PLEASE PRINT TITLE AND NAME] -11- DATED: 1 (`� NATIONAL INDEMNITY COMPANY By: Its: Farres(' N. ICr� e.r— [PLEASE PRINT TITLE AND NAME] CSL:tj contra.agr -12- SETTLEMENT AGREEMENT This Settlement Agreement (hereinafter "AGREEMENT") is intended to become effective as of the latest date appearing on the signature page, and has been agreed to and entered into by each party hereto in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. PARTIES The parties to this AGREEMENT are: 1. The County of Contra Costa, a political subdivision of the State of California (hereinafter referred to as "COUNTY"). 2. Pacific Indemnity Company ("PACIFIC") and Federal Insurance Company ("FEDERAL"). RECITALS A. WHEREAS, COUNTY has been subjected to alleged demands, actions, lawsuits, orders, and/or administrative proceedings which have been or which are likely to be asserted against it, arising out of or relating to a landfill site on property adjacent to Waterbird Way in Martinez, California, in the unincorporated portion of the COUNTY, commonly known as the Acme Landfill and consisting of three landfill parcels and other real property including any property adjacent to or in the immediate proximity to the Acme Landfill as well as the atmosphere, groundwater or surface water affected on or by said property (hereinafter referred to as the "SITE"). The SITE contains three parcels commonly known as the North, South, and East Parcels. B. WHEREAS, COUNTY has been named as a defendant in lawsuits relating to the SITE identified as Acme Fill Corporation v. Althin CD Medical. Inc., et al.. United States District Court, Northern District of California, Case Number C91 4268 MMC, and as Acme Fill Corporation v. Contra Costa County, Superior Court of the State of California in Contra Costa County, Case Number C93 02532 (hereinafter collectively referred to as the "LAWSUITS"). C. WHEREAS, COUNTY has notified PACIFIC and FEDERAL of its involvement at the SITE, and in the LAWSUITS identified above, and COUNTY has requested that PACIFIC and FEDERAL extend INSURANCE COVERAGE to it pursuant to alleged policies of insurance, identified as: 1. Policy number LAC 84504 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of July 1, 1955 through July 1, 1956)- 2. 956;2. Policy number LAC 108159 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of July 1, 1958 through July 1, 1959; 3. Policy number LAC 117254 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of July 1, 1959 through July 1, 1960; 4. Policy number LAC 119955 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of July 1, 1960 through July 1, 1961; 5. Policy number LAC 134280 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of July 1, 1961 through July 1, 1964; 6. Policy number LP 10110 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of July 1, 1964 through July 1, 1967; 7. Policy number LP 10395 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of August 1, 1967 through July 1, 1970)- PAGE 970;PAGE 2 OF 11 8. Policy number LP 11227 issued by PACIFIC INDEMNITY COMPANY to COUNTY with effective dates of July 1, 1970 through July 1, 1973; D. WHEREAS, PACIFIC and FEDERAL have conducted a diligent search of their records and files and have located all evidence of any insurance policy issued to COUNTY. E. WHEREAS, "THE POLICY' as used in this AGREEMENT shall include the insurance policies identified in paragraph "C" above and shall further include any other insurance policy, known or unknown, which may have been issued to COUNTY by FEDERAL, PACIFIC and their predecessors, subsidiaries, affiliates, managers and parents. F. WHEREAS, "INSURANCE COVERAGE" as used in this AGREEMENT shall include any alleged obligation, duty or liability of any kind contained in, arising out of, as the result of, or in any way connected with THE POLICY. G. WHEREAS, certain disputes have arisen between the parties to this AGREEMENT relating to various questions of INSURANCE COVERAGE pertaining to their respective rights and duties under THE POLICY. H. WHEREAS, it is understood and agreed by the parties that it is the object and intent of this AGREEMENT to include and conclude any and all claims of any kind including, but not limited to, potential involvement regarding personal or bodily injuries, property damage, investigation, remediation, defense, response or cleanup responsibility, indemnity, or contribution, arising out of or in any way connected with the SITE. I. WHEREAS, the parties hereto wish to resolve fully and finally, as between themselves, all disputes which now exist or which in the future may arise with respect to the application and the extent of any INSURANCE COVERAGE arising out of or in any way connected with the SITE. PAGE 3 OF 11 AGREEMENT NOW, THEREFORE, in consideration of and in reliance upon the recitals, promises, covenants, understandings, and obligations hereinbefore and hereinafter set forth, the parties hereto mutually agree as follows: 1. Payment by PACIFIC and FEDERAL Concurrent with the execution of this AGREEMENT, PACIFIC and FEDERAL will pay the total sum of eight hundred and seventy thousand dollars and no cents ($870,000.00) to COUNTY. This payment shall constitute full and complete settlement of all past, present, future and potential claims, whether known or unknown, or to be subsequently discovered or to subsequently occur, by COUNTY for INSURANCE COVERAGE arising out of or in any way connected with the SITE. 2. Releases (a) COUNTY shall and hereby does fully and forever release and discharge PACIFIC and FEDERAL and all of PACIFIC'S and FEDERAL'S past, present and future officers, directors, employees, managers, representatives, shareholders, attorneys, successors, assigns, subsidiaries, affiliates, and parents from any and all claims, actions, suits, causes of action, rights, liabilities, contracts, duties and obligations, of every kind and nature whatsoever, whether known or unknown, past, present and future, for damages or relief of any kind, including but not limited to defense, indemnity, punitive damages, attorney fees, violation of any state or federal statute or regulation, including any claim of bad faith or improper claims handling or alleged wrongdoing of any kind, arising out of, as a result of, or in any way connected with SITE. PAGE 4 OF 11 b. PACIFIC and FEDERAL shall and hereby do fully and forever release and discharge COUNTY and all of COUNTY'S past, present, and future officers, directors, employees, representatives, shareholders, attorneys, successors and assigns, from any and all claims, actions, demands, suits, causes of action, rights, liabilities, contracts, duties and obligations, of every kind and nature whatsoever, whether known or unknown, past, present and future, for damages or relief of any kind arising out of, as a result of, or in any way connected with the SITE. 3. Waiver of Subrogation, Contribution, and Indemnification Rights PACIFIC and FEDERAL hereby waive any and all subrogation, contribution, and indemnification rights they may have, by reason of entering into this AGREEMENT and making payment herein by reason of any contract relating to INSURANCE COVERAGE provided by PACIFIC and FEDERAL to COUNTY, against any other insurer with respect to the SITE; provided the insurance company has entered into a similar agreement with COUNTY and which agreement contains a waiver of subrogation, contribution and indemnification rights in substance and effect the same as the waiver herein. 4. Waiver of California Civil Code Section 1542 COUNTY and PACIFIC and FEDERAL acknowledge that they are all familiar with the provisions of California Civil Code section 1542 which provides: "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." PAGE 5 OF 11 04.3 Being aware of California Civil Code section 1542 and being advised by independent counsel of their own choice regarding the meaning and effect of Section 1542, COUNTY and PACIFIC and FEDERAL hereby expressly waive any rights that they may have against the other under this law, as well as any other statutes or common law principles of similar effect in connection with the SITE. 5. Representation by COUNTY (a) COUNTY represents and warrants that it has not and will not in any manner assign, transfer, convey, sell or purport to assign, transfer, convey or sell to any entity or person any cause of action, chose in action, or part thereof, arising out of or connected with the matters released herein. (b) COUNTY represents and warrants that it will not in any way voluntarily assist any other person or entity in the establishment of any claim, action, right or cause of action against PACIFIC and FEDERAL which in any way relates to THE POLICY or to the investigation, handing, defense or settlement of any claims related to the SITE. (c) COUNTY represents and warrants that it has no knowledge of any lawsuits against it relating to the SITE except as described in Recital "B". of this AGREEMENT. PAGE 6 OF 11 6. Representation by PACIFIC and FEDERAL (a) PACIFIC and FEDERAL represent and warrant that they have not and will not in any manner assign, transfer, convey, sell or purport to assign, transfer, convey or sell to any entity or person any cause of action, chose in action, or part thereof, arising out of or connected with the matters released herein. (b) PACIFIC and FEDERAL represent and warrant that they will not in any way voluntarily assist any other person or entity in the establishment of any claim, action, right or cause of action against COUNTY which in any way relates to THE POLICY or to the investigation, handling, defense or settlement of any claims related to the SITE. 7. No Admission (a) This AGREEMENT is the result of a compromise, and accord, and shall not be considered an admission of coverage, liability or responsibility by either COUNTY or PACIFIC and FEDERAL. (b) In particular, and without limitation, nothing contained herein constitutes an admission by PACIFIC and FEDERAL that COUNTY is entitled to any INSURANCE COVERAGE in connection with any environmental claims, or any settlement thereof, or with respect to any other matter, under any policy of insurance which may have been issued by FEDERAL, PACIFIC and their predecessors, subsidiaries, affiliates, managers and parents to COUNTY. S. No Precedent This AGREEMENT will be without precedential value and is not intended to, nor shall it be construed as an interpretation of any insurance policy, and shall not be used as evidence, or in any other manner, in any court or dispute resolution proceeding to create, prove or PAGE 7 OF 11 interpret the obligations of PACIFIC and FEDERAL under any insurance policy issued to COUNTY or any other person or entity. 9. Construction of AGREEMENT This AGREEMENT shall not be interpreted according to the rules of construction applicable to insurance contracts. This AGREEMENT is the product of arms' length negotiations between the parties, and no party shall be deemed to be the drafter of this AGREEMENT, nor shall any part of this AGREEMENT be construed against any party on the basis of that party's identity as an insurance company or a drafter of any part of this AGREEMENT. In the event of uncertainty in the terms of this AGREEMENT, such uncertainty shall be resolved fairly and in accordance with the intent of the parties as set forth herein and without regard as to who caused the uncertainty to exist. 10. Entire Agreement This AGREEMENT is an integrated agreement and contains the entire agreement between the signatories hereto. No representations, warranties, or promises have been made or relied upon by any signatory hereto other than as set forth herein. This AGREEMENT supersedes and controls any and all prior communications between the parties or their representatives relative to the matters contained herein. 11. Governing Law This AGREEMENT shall be interpreted and enforced pursuant to the laws of the State of California. PAGE 8 OF 11 12. No Modifications 0 Neither this AGREEMENT nor any term, provision, covenant, or condition contained herein, may be amended, changed, altered, modified or waived, except by an express instrument in writing signed by the parties hereto. 13. Binding Effect Each of the terms of this AGREEMENT is binding upon each of the signatories hereto, their respective predecessors, successors, representatives, principals, agents, officers, directors, employees, transferees and assigns. 14. Warranty of Capacity to Execute the AGREEMENT (a) COUNTY represents and warrants to PACIFIC and FEDERAL that the execution and delivery of this AGREEMENT has been duly and validly authorized and approved by all requisite action required under applicable law and that no further action is necessary to make this AGREEMENT and all transactions contemplated hereby valid and binding on COUNTY in accordance with the terms hereof. (b) PACIFIC and FEDERAL represent and warrant to COUNTY that the execution and delivery of this AGREEMENT has been duly and validly authorized and approved by all requisite corporate action and that no further action is necessary to make this AGREEMENT and all transactions contemplated hereby valid and binding on PACIFIC and FEDERAL in accordance with the terms hereof. (c) Each party further represents and warrants to the other that each has the sole right and exclusive authority to execute this AGREEMENT and pay or receive the sums specified herein and that the party has not sold, signed, transferred, conveyed or otherwise disposed of any of the claims demands, obligations or causes of action referred to in this PAGE 9 OF 11 AGREEMENT, except that PACIFIC and FEDERAL may have entered into reinsurance agreements which are relevant to the obligations referred to in this AGREEMENT. 15. Counterparts This AGREEMENT may be signed in counterparts and shall become effective upon its execution by the parties hereto, each,copy having the same force and effect as an original. IN WITNESS WHEREOF, the parties hereto warrant that they have read all of this AGREEMENT and fully understand everything contained therein. Each party represents that the party is represented by counsel and fully and freely assents to all terms of the AGREEMENT. PAGE 10 OF 11 DATED: �� ,�( /9, /99�� THE COU F O T OSTA By: Its• Skoer Jiso r ,T�e--F S [PRINT TITLE AND NAME HERE] DATED: _November 11, 1996 PACIFIC INDEMNITY COMPANY and FEDERAL INSURANCE COMPANY By: Its: Senior Claim Officer David Brennan CWM:lf cont1106.1fl PAGE 11 OF 11 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (hereinafter referred to as the "AGREEMENT" ) is entered into as of the latest date appearing on the signature page by and between CONTRA COSTA COUNTY, including all of its boards, commissions and members thereof, elective and appointed officers and officials, divisions and related entities (hereinafter collectively referred as "COUNTY" ) and PROVIDENCE WASHINGTON INSURANCE COMPANY, WESTERN ALLIANCE INSURANCE COMPANY and MOTOR VEHICLE CASUALTY COMPANY, together with and including all of their present and former parents, subsidiaries, divisions and related entities (hereinafter collectively referred to as "PROVIDENCE" ) , in accordance with the terms and conditions set forth below. RECITALS A. WHEREAS, COUNTY has been subjected to alleged demands, actions, lawsuits, orders and/or administrative proceedings which have been or which are likely to be asserted against it, arising out of or relating to a landfill site on property adjacent to Waterbird Way in Martinez, California, in the unincorporated portion of the COUNTY, commonly known as the Acme Landfill and consisting of three landfill parcels and other real property including any property adjacent to or in the immediate proximity to the Acme Landfill as well as the atmosphere, groundwater or surface water affected on or by said property (hereinafter referred to as "THE SITE" ) . THE SITE contains three parcels commonly known as the North, South and East Parcels . SETTLEMENT AGREEMENT AND RELEASE Page 1 of 11 B. WHEREAS, COUNTY has been named as a defendant in pending lawsuits relating to THE SITE identified as Acme Fill Corporation v. Althin CD Medical, Inc . , et al . , United States District court, Northern District of California, Case Number C91-4268 MMC, and as Acme Fill Corporation v. Contra Costa County, Superior Court of the State of California in Contra Costa County, Case Number C93-02532 (hereinafter collectively referred to as the "LAWSUITS" ) . C. WHEREAS, COUNTY has notified PROVIDENCE of their involvement at THE SITE, and in the LAWSUITS identified above, and COUNTY has requested that PROVIDENCE extend insurance coverage to it pursuant to a policy of insurance identified as : 1 . Policy Number CL 29 9820, issued by PROVIDENCE WASHINGTON INSURANCE COMPANY to COUNTY with effective dates of July 1, 1974 to July 1, 1976, and canceled on November 3 , 1975 (hereinafter referred to as "THE POLICY" ) . D. WHEREAS, PROVIDENCE has conducted a diligent search of its records and files and has located all evidence of any insurance policy issued to COUNTY. E. WHEREAS, THE POLICY as used in this AGREEMENT shall include the insurance policy identified in Paragraph "C" above and shall further include any other insurance policy, known or unknown, which may have been issued to COUNTY by PROVIDENCE. F. WHEREAS, INSURANCE COVERAGE as used in this AGREEMENT shall include any alleged obligation, duty or liability of any kind contained in, arising out of, as the result of, or in any way connected with THE POLICY. SETTLEMENT AGREEMENT AND RELEASE Page 2 of 11 G. WHEREAS, COUNTY has notified PROVIDENCE of its involvement in THE SITE, and in the LAWSUITS identified above, and COUNTY has requested that PROVIDENCE extend INSURANCE COVERAGE to it pursuant to a policy of insurance identified as Policy Number CL 29 98 45 issued by PROVIDENCE to COUNTY with effective dates of July 1, 1974 through October 3 , 1975 . H. WHEREAS, certain disputes have arisen between the parties to this AGREEMENT relating to various questions of INSURANCE COVERAGE pertaining to their respective rights and duties under THE POLICY, and PROVIDENCE contends that there is no coverage for any of the past, present and/or future claims asserted against COUNTY with respect to THE SITE. I . WHEREAS, it is understood and agreed by the parties that it is the object and intent of this AGREEMENT to include and conclude any and all claims of any kind including, but not limited to, potential involvement regarding personal or bodily injuries, property damage, investigation, remediation, defense, response or cleanup responsibility, indemnity or contribution, arising out of or in any way connected with THE SITE. J. WHEREAS, the parties hereto wish to resolve fully and finally, as between themselves, all disputes which now exist or which in the future may arise with respect to the application and the extent of any INSURANCE COVERAGE arising out of or in any way connected with THE SITE. AGREEMENT NOW, THEREFORE, in consideration of and in reliance upon the SETTLEMENT AGREEMENT AND RELEASE Page 3 of 11 definitions, recitals, promises, covenant, understandings and obligations herein before and herein after set forth, COUNTY and PROVIDENCE mutually agree as follows : 1 . Payment of Settlement Amount : A. Within thirty (30) days after the latest date appearing on the signature page of this AGREEMENT, PROVIDENCE shall pay to COUNTY the following sum: ONE HUNDRED TWENTY THOUSAND AND N0/100 DOLLARS ($120, 000 . 00) . B. PROVIDENCE shall remit its portion of the settlement funds directly to the COUNTY, by and through attorney Timothy V. P. Gallagher. C. The payment described in Paragraph 1 shall constitute a full and complete settlement of all past, present, future and potential claims relating to or arising out of THE SITE and the LAWSUITS, whether known or unknown or to be subsequently discovered, by COUNTY for INSURANCE COVERAGE from PROVIDENCE. 2 . Release A. Payment by PROVIDENCE to COUNTY will extinguish any and all obligations on the part of PROVIDENCE to COUNTY in connection with any past, present or future claims, suits, proceedings, actions, requests, demands or orders of any kind, known or unknown, relating to THE SITE and the LAWSUITS, including any demand/obligation for reimbursement, contribution or indemnity with respect to, arising out of, or for bodily or personal injury damages, property damage, nature resource damages or costs of any obligation on the part of PROVIDENCE to investigate, defend, pay defense costs, settle claims or suits, or SETTLEMENT AGREEMENT AND RELEASE Page 4 of 11 pay settlements or judgments relative thereto, including any for contribution to or reimbursement of defense costs, past or future, relating to THE SITE and the LAWSUITS . B. COUNTY hereby fully releases and forever discharges PROVIDENCE, their parents, subsidiaries, affiliated companies, and predecessor companies, and all of their past and present officers, directors, employees, representatives, agents, shareholders and attorneys of and from any and all claims, actions, causes of action, rights, liabilities, obligations and demands of very kind and nature, known or unknown, past, present and future for damages and costs of any kind relating to or arising out of THE SITE and the LAWSUITS, including punitive, extra-contractual, or other legal, statutory or equitable relief, or for INSURANCE COVERAGE relating to THE SITE and the LAWSUITS . C. COUNTY hereby fully releases and forever discharges PROVIDENCE, their parents, subsidiaries, affiliated companies, and predecessor companies, and all of their past and present officers, directors, employees, representatives, agents, shareholders and attorneys of and from any and all claims, actions, causes of action, rights, liabilities, obligations and demands of every kind and nature, known or unknown, past, present and future for damages of any kind, including punitive, or other legal, statutory or equitable relief, or for costs and expenses related to the defense of any claim, arising out of, resulting from, or in any way connected with any action or omission or alleged act or omission pertaining to or relating to any claims involving THE SITE and the LAWSUITS, including but not limited to, acts SETTLEMENT AGREEMENT AND RELEASE Page 5 of 11 or omissions, if any, constituting breach of contract, unfair defense or settlement practices, insurance or other statutory code violations, bad faith, breach of duty, fraud, malice or oppression. D. Should COUNTY incur any future obligations or liability arising out of its alleged involvement relating to THE SITE or the LAWSUITS, those obligations or liabilities, in any form, shall not be the responsibility of PROVIDENCE. It is the intention of the parties that the foregoing releases shall be effective as a bar to all matters released herein. The releases described herein shall be, and shall remain in effect as, full and complete releases, notwithstanding the discovery or existence of any additional or different facts or claims . 3 . Waiver of California Civil Code Section 1542 The parties hereby waive their rights under California Civil Code Section 1542 and any statute, rule or legal doctrine similar to California Civil Code Section 1542, for any and all matters released herein. The parties acknowledge that, California Civil Code 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. In waiving the provisions of California Civil Code Section 1542, the parties acknowledge that they may hereafter discover facts in addition to or different from those that they now believe to be true with respect to the subject matter of the disputes and other matters released herein, but agree that they have taken that possibility into SETTLEMENT AGREEMENT AND RELEASE Page 6 of 11 account in reaching this AGREEMENT and that the releases given herein shall be and remain in effect as full and complete releases, notwithstanding the discovery or existence of any such additional or different facts, as to which all parties expressly assume the risk. Moreover, the parties acknowledge that they have been advised by counsel as to the effect of California Civil Code Section 1542 and the waiver thereof . 4 . Waiver of Subrogation, Contribution and Indemnification Rights PROVIDENCE hereby waives any and all subrogation, contribution and indemnification rights it may have, by reason of entering into this AGREEMENT and making payment herein by reason of any contract relating to INSURANCE COVERAGE provided by PROVIDENCE to COUNTY, against any other insurer with respect to THE SITE; provided the insurance company has entered into a similar agreement with COUNTY and which agreement contains a waiver of subrogation, contribution and indemnification rights in substance and effect the same as the wavier herein. 5 . Representations as to Non-Assignment of Rights COUNTY represents and warrants that it has not and will not in any manner assign, transfer, convey or sell, or purport to assign, transfer, convey or sell to any entity or person any cause of action, chose in action, or part thereof, arising out of or connected with the matters released herein and that it is the only person or entity entitled to recover for any damages under such claims, causes of actions, actions and rights, if any. COUNTY further represents and warrants that, to its knowledge, no subrogation of any cause of action, SETTLEMENT AGREEMENT AND RELEASE Page 7 of 11 chose in action, or part thereof possessed by it or its related entities has taken place and that it will not in any way voluntarily assist any other person or entity in the establishment of any claim, cause of action, or right against PROVIDENCE that in any way relates to the investigation, handling, defense or settlement of claims arising from COUNTY' s involvement in THE SITE. 6 . Non-Admission of Liability or Responsibility This AGREEMENT is the result of a compromise and accord and shall not be considered an admission of liability or responsibility by PROVIDENCE. PROVIDENCE contends that disputes exist with respect to INSURANCE COVERAGE. In particular, and without limitation, nothing contained herein constitutes an admission by PROVIDENCE that COUNTY was or is entitled to any INSURANCE COVERAGE in connection with THE SITE and the LAWSUITS, or any settlement thereof, or with respect to any other matter, under THE POLICY or any policy of insurance that may have been issued by PROVIDENCE to COUNTY. None of the terms of this AGREEMENT, nor any aspect of its negotiations or performance, shall be used in any manner by anyone in any other action or proceeding or future action or proceeding as evidence of any policy issued or allegedly issued by PROVIDENCE or evidence of the rights, duties or obligations of PROVIDENCE or COUNTY under THE POLICY. 7 . Arm' s Length Agreement This AGREEMENT is a compromise and settlement of disputed claims . It is the product of arm' s length negotiations . It is entered into without prejudice or precedential value and is not intended, nor shall it be construed, as an interpretation of any insurance policy and SETTLEMENT AGREEMENT AND RELEASE Page 8 of 11 shall not be used as evidence or in any other manner in any court or dispute resolution proceeding to create, prove or interpret the obligations of PROVIDENCE under any insurance policy issued by or to any party of this AGREEMENT or to any non-party. 8 . Merger of Agreement This AGREEMENT is an integrated agreement and contains the entire agreement regarding the matters herein between signatories hereto. No representations, warranties or promises have been made or relied on by any signatory hereto, other than as set forth herein. This AGREEMENT supersedes and controls any and all prior communications between the parties or their representatives relative to the matters contained herein. 9 . No Rights Conferred Upon Non-Parties This AGREEMENT is intended to confer rights and benefits only on the signatories hereto and is not intended to confer any right or benefit upon any other person or entity. No person or entity other than the signatories hereto shall have any legally enforceable right under this AGREEMENT. All rights of action for breach of this AGREEMENT are hereby reserved to the signatories hereto. 10 . Construction of Agreement This AGREEMENT is not a policy of insurance, and the signatories do not intend that it be interpreted as such. It is also expressly agreed and understood by the parties that the language of this AGREEMENT shall not be presumptively construed against any of the parties hereto. SETTLEMENT AGREEMENT AND RELEASE Page 9 of 11 11 . Confidentiality This AGREEMENT and the implementation of any of its terms are and shall remain confidential . The parties hereto may disclose the terms hereof to related or affiliated corporate entities, but only under circumstances that will protect and ensure confidentiality. PROVIDENCE and the COUNTY may disclose the terms hereof to their reinsurers, auditors, attorneys, accountants or financial regulators, or as required by public disclosure law. Other than as expressly provided for in this paragraph, this AGREEMENT and the terms hereof shall not be disclosed to any non-party unless so ordered by a court of law. 12 . Representations COUNTY represents and warrants to the extent applicable : A. That is has taken all necessary and legal actions to duly approve the making and performance of this AGREEMENT and that no further or other approval is necessary; B. That the making and performance of this AGREEMENT will not violate any provision of law governing its authority and activities; and C. That it has read this AGREEMENT and knows the contents thereof, that the terms hereof are contractual and not by way of recital, and that it has signed this AGREEMENT of its own free actin. 13 . Binding Nature of Terms and Representations of the Parties Each of the terms of this AGREEMENT is binding upon each of the signatories hereto and their respective predecessors, successors, SETTLEMENT AGREEMENT AND RELEASE Page 10 of 11 �. -,93 transferees, assigns, representatives, principals, agents, officers, directors and employees . 14 . Attorneys' Fees All parties hereby agree to bear all attorneys' fees, costs and expenses arising from the actions of their own counsel in connection with the settlement agreement and all matters and documents referred to herein and for all related matters . 15 . Governing Law This AGREEMENT is governed by and shall be interpreted according to the laws of the State of California. 16 . Counterparts This AGREEMENT may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument . DATED: /.2 - CONTRA COSTA COUNTY By: _ Its: Se-F-F SV�th ! lPt uISnY' . Gnni-ru P. l'eunt [PL ASE PRINT/TITLE AND NAME] DATED: llhs 1-J( PROVIDENCE WASHINGTON INSURANCE COMPANY, WESTERN ALLIANCE INSURANCE COMPANY and MOTOR VEHICLE CASUALTY COMPANY B PLEASE PRINT TITLE AND NAME] SETTLEMENT AGREEMENT AND RELEASE Page 11 of 11