HomeMy WebLinkAboutMINUTES - 05051998 - C15 REV.
TO: REDEVELOPMENT AGENCY/BOARD OF SUPERVISORS � �` Contra
...... Costa
FROM: Phil Batchelor County
Executive Director ,.
DATE. May 5, 1993
SUBJECT: Helix, et al v. Southern Pacific Transportation Co.
(U.S. District Court, Northern District of California, Civil Action No. C922312DLJ)
SPECIFIC REQUEST(S) OR RECOMMENDATIONS(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
As the Board of Supervisors and the Governing Board of the County Redevelopment Agency,
AGREE to the terms of the Global Settlement outlined below, and:
1. APPROVE and AUTHORIZE the Deputy Director- Redevelopment to execute a Mutual
Release and Settlement Agreement between the Hookston Group, Southern Pacific
Transportation Company, Central Sanitary District, the County; and the County
Redevelopment Agency;
2. APPROVE and AUTHORIZE the Deputy Director - Redevelopment to execute a
Settlement Agreement between the Hookston Group, Southern Pacific Transportation
Company, the County, and the County Redevelopment Agency;
3. APPROVE and AUTHORIZE the Deputy Director - Redevelopment to execute a
Settlement Agreement between the County, the County Redevelopment Agency, and
the Hookston Group; and
4. APPROVE and AUTHORIZE the Deputy Director- Redevelopment to execute a Mutual
Release Agreement between Samuel Young, Sheila Brutoco (the "Youngs"), and the
County and the County Redevelopment Agency.
CONTINUED ON ATTACHMENT: XX--- YES SIGNATURE:
T/ I eo��
RECOMMENDATION OF EXECUTIVE DIRECTOR COMMEND TION OF AQ#NCY
COMMITTEE APPROVE OTHER
SIGNATURE(S):
ACTION OF AGENCY ON 0-5`�'� _ �`T `� APPROVED AS RECOMMENDED, /OTHER
VOTE OF COMMISSIONERS
1 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 REDEVELOPMENT
AGENCY ON THE DATE SHOWN.
Contact: Jim Kennedy
335-1255 ATTESTED -T ,- 5 1-119
prig: Redevelopment Agency PHIL BATCHELO
cc: Community Development Dept. AGENCY SECRETARY
County Administrator
County Counsel r
Public Works - Real Property BY L , DEPUTY
via Redevelopment Agency
Goldfarb & Lipman
Hookston Group
Jaffe Trutanich Scatena & Blum
XA-M81helk.bos
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Richard Beith, E.T. Mags, Inc. , E.T. Industries, Wheel Center,
Wheel Centre, Titra Corporation, Herman J. Tijessling, Herman J.
Tijessling Enterprises, and any of the insurance companies or other
persons or entities against whom any of the Hookston Owners assert
claims in any way related to the Assignment, and for any and all
other liability or expenses arising in connection with this
Assignment, including, without limitation, payment of any and all
attorneys` fees, costs and other expenses incurred by Southern
Pacific in connection with any such claim or cause of action. The
Assignment shall not be effective unless and until this Settlement
Agreement is effective .
23 . Miscellaneous .
a. Sune.rsedes Cther Understandi:,as . Each party
acknowledges and agrees that this Agreement supersedes all prior
and contemporaneous written, oral or i mpl_ed. in fact agreements
amcng the parties .
b. Rules of Construction. The judicial rules of
construction requiring or allowing an instrument to be construed to
the detriment of or against the interests of the drafter of the
Agreement shall not apply to this Agreement .
C. Rindina Effect . This Agreement shallbe binding
upon the parties hereto, and each of their respective ' successors,
assigns and heirs .
d. California Law. This Agreement shall be construed
and enforced in accordance with, and be governed by, the laws of
the State of California.
248.0546\agreemnt.3 22 JTS&H DRAFT: 4/01/97
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e . Interest . Interest shall accrue at the annual rate
of 101i simple interest, from the time payment is due to the time
payment is made for all payments due hereunder.
f . Attorneys ' Fees and Costs . in any action or
proceeding relating to or arising under this Agreement, including
without limitation, arbitration of disputes pursuant .to the terms
of this Agreement, the successful or prevailing party or parties
shall be entitled to receive, in addition to any other relief to
which such party may be entitled, reasonable attorneys' fees and
costs in connection with such action or proceeding.
a. Section_ Headinas . The headings of sections of this
Agreement are for convenience of reference only, are not to be
considered a part hereof, and shall not limit or otherwise affect
any of the terms hereof .
h. Modi-fication of the Aareement . Neither this
Agreement nor any provisions hereof may be changed, waived,
d_scharged or terminated orally, but only by instrument in writing
signed by the party against whom enforcement of the chance, waiver,
discharge or termination is sought.
i . Entire Acreement . This Agreement constitutes the
entire understanding of the parties and supersedes all prior
contemporaneous agreements, discussions or representations, oral or
written, with respect to the subject matter hereof, and each of the
parties states that it has read each of the provisions of the
Settlement Agreement and understands the same.
j . Counterparts . This Agreement may be executed in any
248.0546\agreemnnc.3 23 ,TTS&& DP-kFT.- 4/01/97
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number of counterparts, all of which together shall constitute but
one original document .
k. Notice : All notices or demands required or
permitted under this Agreement shall be in writing and shall be
effective if sent by registered or certified mail, postage prepaid
and return receipt requested. Notice shall be deemed received at
the time hand delivered or within 48 hours after the time of
mailing. Any party may also give notice by facsimile transmission,
which shall be eLfective upon confirmation by the party sending the
Notice that such facsimile transmission has been received by the
party to whom the Notice has been addressed. Nothing in this
paragraph shall prevent the giving of notice in such manner as
prescribed by the California Rules of Civil Procedure for the
service of legal process . Any party may change its designated
representative or address by giving written notice thereof to, the
other parties . Notices effectuating the requirement of this
Settlement Agreement shall be directed as follows .
Union Pacific Railroad Company
David Steefel, Esq.
Holme, Roberts & Owen LLC
1700 Lincoln Street, Suite 4100
Denver,: Co 80203 '
FAX: (303 ) 865-0200
Southern Pacific Transportation Company
David Steefel, Esq.
Holme, Roberts & Owen LLC
1700 Lincoln Street, Suite 4100
Denver, Co 80203
FAX: (303) 866-0200
248.0546\agreemnt.3 24 .TTS&B DRAFT: 5/23/97
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The Hookston Group _
Rex Scatena
Jaffe, Trutanich, Scatena & Blum
155 Sansome Street, Suite 700
San Francisco, CA 94104
FAX: (415) 397-1339
Contra Costa County Redevelopment Agency
Lee Rosenthal
Goldfarb & Lipman
One Montgomery St . , 23rd Floor
San Francisco, CA 94104
FAX: (415) 788-0999
Contra Costa County
Sharon Anderson
Deputy County Counsel
P.O. Box 69
Martinez, CA
FAX: (510) 646-1078
Third Party Defendants
Dan Adams
Turner, Huguet, Brans & Adams
P .O. Box 110
924 Main Sheet
Martinez, CA 94553
FAX: (510) 228-3596
1 . Sffecdive Date . This Settlement Agreement shall be
deemed effective as of the latest of the date of execution by all
parties hereto, entry of a good faith settlement order by the Court
in accordance with Section 19 of this Agreement, and the Agreement
between Contra Costa County, the Contra Costa County Redevelopment
Agency, and the Hookston Group ( "County Agreement" ) becoming
effective, and the Agreement between Sam Young, Sheila', Brutoco and
Southern Pacific becoming effective . The County Agreement and this
Settlement Agreement shall be presented to the County for its
approval simultaneously.
248.0546\agreemnt.3 25 JTS&B DRAFT: 4/01/97
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Dated: Southern Pacific Transportation Company
its - t :rte '3rJC'(jan! . raw
Dated: Union Pacific Railroad Company
By:
Its : j n frti'rVc:"tonf L3-.'/
Dated:
Daniel Helix, individually
Dated:
Mary Lou Helix, individually
Dated:
Daniel C. .Helix, as Co-Trustee of
The Helix Family Living Trust
Dated:
Mary Lou Helix, as Co--Trustee of
The Helix Family Living Trust
Dated:
Elizabeth Young
Dated:
John. V. Hook, individually
Dated:
John V. Hook, as Co-Trustee Under the
Will of Mildred A. Hook
Dated:
Steven Pucell, individually
Dated:
Steven Pucell, as Co--Trustee Under the
Will of Mildred A. Hook
248.0546\agreemnt.3 26 JT5&8 DPLAFT. 5/23/97
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Dated:
Steven Pucell, as Administrator with
Will Annexed of the Estate of
Geneva B. Hook
Dated: County of Contra Costa
By:
Its :
Dated: Contra Costa County Redevelopment Agency
By:
Its :
Dated:
Dura Hook
Dated:
Nancy Ellicock, individually'
Dated.
Nancy E1?:.cock, as ,.dministrator with
Will Annexed of the Estate of
Geneva B . Hock
9
Dated:
Karen Heredia
248.0546\agreemnt.3 27 TTS&.B DRAT: 4/91./97
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EXHIBIT-
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i
1 EXHIBIT A
2 DAVID W. LONG, STATE BAR NO. 61932
SOUTHERN PACIFIC TRANSPORTATION COMPANY
3 ONE MARKET PLAZA, SUITE 800
SAN FRVCISCO, . CALIFORNIA 94105
4 Telephone : (415) 54i-2046
5 DAVID S . STEEFEL, COLORADO BAR. NO. 9194
HOLME ROBERTS & OWEN LLc
6 17010 LINCOLN, SUITE 4100
DENVER, COLORADO 80203
7 Telephone (303) 861-7000
8 Attorneys for Defendant
SOtt`TIHERN PACIFIC TRANSPORTATION COMPANY-
9
OMPANY9
10
zy TH7- UNITED S':AT'TS D_STR-CT COL-R-
11 FOR THEE NORTHERN DISTRICT OF CALIFCR:VIA
12 _
DAN_—L C . HE"LIX, et a' . , } Case No. C92 2312 DLJ
13 }
. Plaintif s, ) JOINT ST-
14
AND MOTION
14 ) FOR DISMISSAL OF CLAIMS WITH
V. ) PRE,=j ICE
SOUT '.�.V PAC iF IC )
16 TR.LNSPORTA`±'ION COMPA`VY, }
et al . , }
17 }
Defendants . )
18 }
)
19 AND RE1-ATED ACTIONS . )
)
20
21 Plaintiffs Daniel Helix, ,Mary Lou Helix, 'Daniel C. Helix and
22 Mary Lou Helix as Co-Trustees of the Helix Family Living Trust,
23 Elizabeth Young, John V. Hook, Steven Pucell, Administrator with
24 Will annexed, and Nancy Ellicock, Administrator with Will annexed,
25 of the Estate of Geneva B. Hook, and John V. Hook and Steven Pucell
26 as Co-Trustees Under the Will of Mildred A. Hook, Contra Costa
27 County, the Contra Costa. County Redevelopment Agency and Third-
28 Party Defendants Debra Hook, Nancy Ellicock, Karen. Heredia, and
4275633
Steven Pucell and Defendant Southern Pacific Transportation
2 Company, by and through their respective attorneys, jointly
.3 stipulate that all and I any of their claims against each other in
4 this civil action shall be dismissed with prejudice, each pa=-.y to
5 bear its, his or her attorneys , fees and costs in this action, and
6 jointly move for an Order dismissing all and any of their 'claims
7 against each other with prejudice, each party to bear its, his or
8 her attorneys , fees and costs in this action.
9 DATED this day of 1997.
10
Res-pec' rull-Y subm4 tted,
HOLME ROBERTS & owE.N Lrp
12
By:
David S . stleefe,
14 L
i 1700 Li;.ncoin, Su4te 4100
Denver, Co 80203
IS i
161 AtzOrneys ;or Defendant
Southern Pacific
17 Transportation Company
181
JAFFE, TRUTA.LqIcH, SCATENA &: B L UT IM
19 '
20
By:
21 Rex Scacena
.David S-J -Ive-rman
155 Sansome Street, Suite 700
22 San Francisco, CA 94104
23) Attorneys for Plaintif'Es
24
25
26
27
28
9275633 -2-
1 GOLDFARB & LIPMAN
2 -
3 BY•
Lee Rosenthal
4 One Montgomery St . , 23rd Floor
San Francisco, CA 94104
S
Attorneys for Contra Costa County
6 Redevelopment Agency
7
CONTRA COSTA COUNTY
8
9
By:
10 Sharon Anderson
Deputy County Counsel
11 P .O. Box 69
Martinez, Cy
12
1 i TURIN ER, HTUGUET, BRA-IMS & ADAMS
14
15 BV:
Dan Adams
16, P.O. Box 110
924 Main Street-
17
t::eet17 Martinez, CA 94553
18 Attorneys for m!h, rd. Party
Def_endant s
19
20
21
71
2;
24
25
26
27
28
9273633 _3_
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1 PROOF OF SERVICE
2 -
STATE OF COLORADO }
3
CITY AND COUNTY OF DENVER }
4
5 I am a citizen of the United States and employed in the
County aforesaid. I am over the age of 16 and not a party to the
6 above entitled action; my business address is Holme Roberts & Owen
sc, 1700 Lincoln Street, Suite 4100, Denver, Colorado 80203 . r
7 am familiar with my business ' s practice of processing mail and
facsimiles .
8
On April , 1997, I served the within JOINT STIPULATION
9 AND MOTION FOR DISMISSAL OF CLAIMS WITH PREJUDICE by placing a true
copy thereof in the mailroom in envelopes addressed to the parties
10 listed on the attached sliest (s) in this action_. I am familiar with
the regular mailing procedures of Home Rcberts & Owen LLc, by which
11 the attached notice will be served on April ,, 1997 .
12 X (Federal) I declare that I am employed in the offices of
a member of the bar of this court at whose direction the service
13 was made .
14 Executed. on April �, 1997, at Denver, Colorado .
15
16
17
18
19
20
21
22
23
24
25
26
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28
,1275633 '4'
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i SERVICE LIST
(HELIX v. SOUTHERN PACIFIC)
2 _
Rex, Scatena, Esq.
3 Jaffe, Trutanich, et al .
155 Sansome Street, Suite 700
4 San Francisco, CA 94104
For: Plaintiffs Helix and Contra Costa County Redevelopment
5 Agency and Centra. Costa County and Third Party Defendants
6 Steven A. Woodard, In pro per
199-14 Mayhew Way
7 Walnut Creek, CA 94596
For: Steven Woodard dba Arrow Garage
8 y
Sharon L. Anderson, Esq.
9 Deputy County Counsel
County of Centra Costa
10 P .O. Box 69
Martinez, CA 94553
11 For: Contra Costa County Redevelopment Agency and Ccntra Costa
County
12
Lee C. Rosenthal, Esc.
13 Goldfarb & Lipman
+
One Montgomery St . , 23rd Fl .
14 San. Francisco, CA 94104
15 For: Contra Costa County Redevelopment Agency
Gregg .M. Anderson, Esc.
16 Anderson & Anderson
_ 100 Pine St . , Suite 2575
11 Saga Francisco, CA 94. 11
1S For: Herman u. Tijsselir+g Inc . & Titra Corporation
R. Duane Skelton, Esq.
19 .Rust, Armenis & Schwartz
P .O. Box 41.958
20 Sacramento, CA 958d1-0958
For: Haber Oil Products, Inc.
21
Thomas C. Sites, Esq.
22 Sellar, Hazard, Snyder, Kelly & Fitzgerald
1111 Civic Dr. , Suite 300
23 P .O . Box 3510
Walnut Creek, CA 94598
24 For: Central Contra Costa Sanitary District
25 Carolyn Cain, Esq.
Cain & Cain
26 1501 North Broadway, Suite 203
Walnut Creek, California 94596
27 For: Richard Beith and E.T. Mags
28
9275As
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I James P . Watson, Esq.
Stanton, Kay & Watson
2 180 Sutter Street, Third Floor _
San Francisco, California 94104
3 For: Atlantic Richfield Company
4
5
6
7
8
9
10
i1
12
13 1
R
14
15 E
16
17
18
19
20
21
22
23
24
25
26
27
28
$275633 -6-
E}.WHIT
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EXHIBIT B
ASSIGNMENT
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Southern Pacific
Transportation Company for itself, its successors and assigns
("Southern Pacific") , hereby assigns, without warranty or
representation, to Daniel C. Helix, on behalf of Daniel C. Helix,
Mary Lou Helix, Daniel C. Helix and Mary Lou Helix as Co-Trustees
of the Helix Family Living Trust, Elizabeth Young, John V. Hook,
Steven Pucell, Administrator with Will- annexed, and Nancv E1 1i cock,
Administrator with rNiF1 annexed, of the Estate o� Geneva E . Hook,
John V. rook and Steven Pucell as Co-Trustees Under the Wi li of
Mildred A. Nook, and Contra Costa County (t;ie "Assignees" ) , all of
Southern Pacific' s rights, i2! anv, to contribution and i :C.'.'.mnity,
both. Sz:atutory and common lair, aca.nsz Richard Reith, E.T. Mags,
Inc . , E .T. Industries, Cal-Motive industries, Wheel Center, Wheel
Centre, `?"itra Corporation, Herman J. Ti jesslino, and Herman J.
Ti jessl i .erg Encerprises, ares?ng from the civil action styled Helix,
et al . y. Southern Pac; fic Transportation Ccroorat.ion, et al . ,
Civil Action No . C922312 DLJ, pending in the United States District
Court for the Northern District of California (the "Helix Civil
Action" ) in connection with the Hookston Station Site in Pleasant
Hill, Cali.forni a (the "Hookston Station Site") and to any rights to
which Southern Pacific may be entitled as an additional named
insured on any insurance policy or policies owned by Richard Beith,
E.T. Mags, Inc . , E.T. Industries, Cal-Motive Industries, Wheel
Center, Wheel Centre, Titra Corporation, Herman J. Tijessling, or
248-0546\assignmt
Herman J. 'Tijess7ing Enterprises for the Hookston Station Site .
Southern Pacific shall have no obligation, express or implied,
to participate in or cooperate in any civil action or proceeding in
connection with the Assignees' prosecution or assertion of any
r5ghts under this Assignment. Further, this Assignment is without
warranty or representation that Southern Pacific has any rights
with regard to claims for contribution or indemnity or as an
additional named insures% on the insurance policies re=erenced
herein.
This Assignment shall not be effective unless and until the
Settlement Agreement by and among Southern Pesci:ic, et- al . and
Daniel He!-! x, et al . in the Civil --Ct—ion is e-f=ective . Th_s
Agreement is subject to, the i Idemnifi ca.ti on provisions in Sect4on
22 o= the Settlement Agreement by and among Sc tne.rn P aci_iC and
Assignees and others for the Helix Civil Action.
Dated: Southern Pacific Transportation Company
By. [] v P
N e E[es'ident - Law
7tJr
248-0545\assignmt
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EXHIBIT C
ENGEO Incorporated, Consul tati__n Rea ar 'i Crnfar Hook-ston Noo 11�5.2n eta i cirr i r�
station9it,- , i liF October 5 ,
1990 .
ENGEO Incorporated, Prel_imina.-y Eire ch%racTerizap-QU r ndings ,
Hooks on Station Site, Pleasant Hill Cal i fQrni a , May 7, 1991 .
ENGEO Incorporated, P2:el ,i mi nary Site Characterization Ei nr?i nga_fQ-r
the Ho kston Station, Pleasant Hill , C"ai i fnrni a , June la , 1991 .
ENGEO Incorporated, Retort on Ground-Water Sammi i nc Hockst-
Station , --Piaaant Kill Ca1jfQrnjA, February 14 , 1992 .
ETNGEO Incorporated, Tniti_al Epi l Cham tor, zat-i oa Stu v far
i°±nQksron fitai.i Qn Pleasant Hill a', i fQ--1 i a , March 3 , 1992 .
Harding Lawson Associates, Modified 'O^as I Arai : minary Hazardous
rt'ous
Msaterial-s Site assessment , ` « or- Stat;iQn Site , Ri as i l l
California, January 5, 1990 .
HarA 4 ng Lawson Associates, Remedial_ Invest i cr n, Hco]SS.tS7I`' Etter,
SitePleasant :. l Cal i foYni a, June 26, 1990 .
Treadwell & Rollo, Inc . , SUhsuj:'Face Tnu s i gat i on Hoc = ci-y,
stat: on Pleasant Hill California, November 12 , 1993 .
Treadwell & Rollo, Inc. , 5'2 7 TIS T tdl SLL7,`7Investi cTati o
Hcokston S a i n nleaga t H` 11 , a7i 'fo-rnia , February; 12 , 1995 .
4279799
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c.XHf=?tT
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1 EXHIBIT D
2 DAVIDW. LONG, STATE BAR NO. _
SOUTHERN PACIFIC TRANSPORTATION COMPANY
3 ONE MARKET PLAZA, SUITE 800
SAN FRANCISCO, CALIFORNIA 94105
4 TELEPHONE: (415)541-1769
5 DAVID.. S. STEEFEL, COLORADO BAR NO. 9194
HOLME ROBERTS & OWEN LLC
6 1700 LINCOLN, SUITE 4100
DENVER, COLORADO 80203
7 TELEPHONE: (303) 861-7000
8 Attorneys for Defendant
SOUTHERN PACIFIC TRANSPORTATION COMPANY
9
10 FRED M. BLUM, 7101586
REX SCATENA, m84472
11 DAVID H. SILVERMAN,X100241
JAFFE,TRUTANICH, SCATENA & BLUM
12 155 SANSO vIE STREET, SUITE 700
SAN FRANCISCO, CALIFORNIA 9410€
13 TELEPHONE: (415) 397-9006
14 Attorneys for Plaintiffs Daniel C. Helix, et al.
151 IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
16
17 DANIEL C. HELIX, et al., ) Case No. C922312 DLJ
18 Plaintiffs, ) ORDER TO DETERNME+'E GOOD F AJTH
SETTLEMENT AND BARRING RELATED �
19 vs. ) ACTIONS AGAINST SOUTHERN PACIFIC ,
TRANSPORTATION COMPANY !
20 SOUTHERN PACIFIC )
TRANSPORTATION COMPANY, ) DATE:
21 et al., ) TIME:
TIME:
22 Defendants, ) D. Lowell Jensen
)
2J AND RELATED ACTIONS.
24
A
25 The joint motion of plaintiffs Daniel Helix, Mary Lou Helix, Daniel C. Helix and Mary Lou
4
26 Helix as Co-Trustees of The Helix Family Living Trust, Elizabeth Young, John V. Hook, Steven !
27 i
28
ORDER TO DEFERIMTNE GOOD FAITH SETTLEMENT
AND BARRING RELATED ACTIONS AGAINST
SOUTHERN PACIFIC TRANSPORTATION COMPANY
N177458
I Pucell,Administrator with Wiil annexed, and Nancy Ellicock, Administrator with Will annexed, of
2 the Estate of Geneva B. Hook, and John V. Hook and Steven Pucell as Co-Trustees Under the Will
3 of Mildred A. Hook , Contra Costa County, and the Contra Costa County Redevelopment Agency
4 ("Plaintiffs"), third-parry defendants Debra Hook,Nancy Ellicock, Karren>Heredia, and Steven Pucell
5 { "Third-Party Defendants") (collectively, "Settlors")and defendant Southern Pacific Transportation
6 Company ("Southern Pacific") for an order finding good faith settlement and barring any cross
7 actions came on regularly for hearing before the Honorable D. Lowell Jensen,judge presiding, on
8 in Courtroom No. 19 of the above-entitled court.
9 Having considered this motion, and any opposition thereto, and having heard and considered
10 oral argument of all parties, and good cause appearing therefor. the court rules as follows:
11 1. Plaintiffs' fifth amended complaint and Third-Party Defendants' claims against
12 Southern Pacific are dismissed with prejudice;
13 2. The settlement between Settlors and Southern Pacific is hereby approved and
14 determined to be in good faith:
15 ;. Any and all claims, State or Federal, against Southern Pacific arising out of this case,
16 whether or not currently filed herein by any parry to this action, or which may be filed by parties
17 subsequently added to this case, including, without limitation,response casts, contribution, equitable
18 or implied indemnity, declaratory relief, attorneys' fees, or costs are barred and dismissedwith
19 prejudice;
20 4. Any and all claims, State or federal, by Southern Pacifid in this case against Settlors,
21 including, without limitation, response costs, contribution, equitable or implied indemnity,
i
22 declaratory relief, recovery in tort(including negligence and strict liability), attorney's fees, or costs
23 are barred and dismissed with prejudice;
{
24 5. Any and all claims of Settlors in this case against nonsettling parties, including,
25 without limitation, any claims for response costs or damages incurred after trial, shall be reduced by
26
27
28
ORDER.TO DET'ER.MNE GOOD FA1Tf{SETTLEMENT
AND BARRING RELATED ACTIONS AGAINST
SOUTHERN PACIFIC TRANSPORTATION COMPANY
X277959 2
a
I the amount of Southern Pacific's equitable share of liability, if any, for Settlors' claims, as equitable
2 shares are determined at trial. Settlors shall bear the risk that Southern Pacific's share of liability, as
3 determined at trial, exceeds the dollar amount of settlement between Settlors and Southern Pacific.
4 This paragraph of the court's order expressly includes any and all claims,whether State or Federal,
5 including, without limitation,any claims for response costs or other damages which Settlors or other
6 parties incur after trial;
7 6. Settlors and nonsettling parties will be allowed to conduct reasonable and good faith
8 discovery of Southern Pacific pursuant to Fed.R. Civ. P. Section 45 and to subpoena Southern Pacific
9 to require attendance at depositions and trial, to produce documents or tangible things, and to the
10 extent relevant, to permit inspection of premises.
I I IT IS SO ORDERED:
12 DATED:
13
14
MGE OF THE L,NiI D STATES DISTRICT
15 COURT
16 NORTHERN DISTRICT OF CALIFORNIA
17
18
19
20
21
22
23
24
25
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ORDER.To DETERMINE GOOD FAFM SETTLEMENT
AND BARMG RELATED ACTIONS AGAINST
SOUTHERN PACIFIC TRANSPORTATION COMPANY
#277458 3
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CLIENT LIST
Re: Helix. et al.. v. Southern Pacific Transportation CoL_., et al.
U.S. District Court, Northern District No. C92-2312-DLJ
Daniel C. Helix and Mary Lou Helix
1102 Northridge Court
P.O. Box 6144
Concord, CA 94524
Elizabeth Young
226 Cumberland Court
Alameda, California 94502
John V. Hook
3169 Tiegland Road
Lafayette, CA 94549
Steven Pucell
11301 Sara Loop
Yakima, WA 98908
Debra Hook
1611 Sunnyvale Avenue
Walnut Creek, CA 94596
Karen Heredia
P.O. Box 1576
Martinez, CA 94553
Nancy Ellicock
50 Willowbrook Lane
Walnut Creek, CA 94595
Lee Rosenthal
Goldfarb & Lipman
One Montgomery Street
Twenty-Third Floor
San Francisco, CA 94104
Dan Adams
Turner, Huguet, Brans, & Adams
P.O. Box 110
Martinez, CA 94553
248.05461cor\c I ient-6.Ist
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SETTLEMENT AGREEMENT
This Settlement Agreement is entered into as of this
day of , 1997 by and between the County of Contra
Costa ("County") , a political subdivision of the State of
California, the Contra Costa County Redevelopment Agency
("Agency") , a public body corporate and politic, and the
following individuals in their individual or representative
capacity: Daniel Helix, Mary Lou Helix, Daniel C. Helix and Mary
Lou Helix as Co-Trustees of the Helix Family Living Trust,
Elizabeth Young, John V. Hook, Steven Pucell, Administrator with
Will annexed, and Nancy Ellicock, Administrator with Will
annexed, of the Estate of Geneva B. Hook, John V. Hook and Steven
Pucell as Co-Trustees Under the Will of Mildred A. Hook, Debra
Hook, Nancy Ellicock, Karen Heredia, and Steven Pucell
(collectively the "Hookston Group") , with reference to the
following:
A. on or about September 30, 1983, the Hookston Group
acquired certain real property in the County of Contra Costa,
California (the "Property") more particularly described in title
attached Exhibit A.
B. on or about June 30, 1989, the Hookston Group sold a
portion of the Property to the County but retained the remainder
of the Property. The portion of the Property sold to the County
is more particularly described in the attached Exhibit B and is
referred to herein as the "County Parcel. " The portion of the
Property retained by the Hookston Group is more particularly
described in the attached Exhibit C and is referred to hereinas
the "Hookston Parcel. " The County acquired the County Parc(.'.-',
with funding provided in part by the Agency.
C. After discovery of certain hazardous materials on the
Property, the Hookston Group, the Agency and the County (referred
to collectively in this Agreement as the "Plaintiffs") brought a
civil action styled as Helix et al . v. Southern Pacific
Transportation Corporation et al. , Civil Action No. 92-2312 DLJ
(the "Civil Action") . The Civil Action is presently pendingi in
the United States District Court for the Northern District of
California. Debra Hook, Nancy Ellicock, Karen Heredia and Steven
Pucell, all part of the Hookston Group, were not plaintiffs in
the Civil Action but were later joined in the Civil Action as
cross-defendants.
D. In the Civil Action, the Plaintiffs are asserting or
have asserted claims against Southern Pacific Transportation
Company ("SP") and other defendants, claims under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 ("CERCLA"") , 42 U.S.C. §§9607 and 9613; the Resource
320\01\101421.04 '�-'
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Conservation and Recovery Act ("RCRA") , 42 U.S.C. §6972;
negligence, contribution under California Health and Safety Code
§25363 (e) , strict liability, nuisance, intentional trespass,
negligent trespass, unjust enrichment, restitution, equitable
indemnity, contractual indemnity, breach of contract and
ultrahazardous activity. SP has asserted claims in the Civil
Action against the .Plaintiffs and others.
E. At the same time as the Plaintiffs executed this
Settlement Agreement, the Plaintiffs and SP also entered into
agreement providing for settlement of the Civil Action (the "SP
` Agreement") as between the parties to the SP Agreement. The SP
Agreement is attached hereto as Exhibit D.
F. In conjunction with the settlement of the Civil Action
and entering into the SP Agreement, the Plaintiffs desire to set
forth their agreements as to certain joint obligations of the
Plaintiffs under the SP Agreement and as to certain future
liabilities and obligations with respect to the Property.
G. In its particulars, the SP Agreement requires
Plaintiffs as a group and SP to each contribute fifty percent
(Sot) of cost of remediating the hazardous materials', on and
emanating from the Property. In this Settlement Agreement, the
Plaintiffs desire to set forth how the Plaintiffs' share of those
remediation costs will be divided among the Plaintiffs.
THEREFORE, the Plaintiffs agree as follows:
Section 1. Conditions Precedent.
Set forth in this Section 1 are conditions precedent to the
effectiveness of this Settlement Agreement. If these conditions
are not satisfied or waived in writing by the Agency (and, in the
case of the condition set forth in subsections (a) and (b) below,
by SP) by July 1, 1998, this Settlement Agreement shall not
become effective and shall have no force or effect, provided,
however, that the Hbokston Group may request an extension from
the Agency and County of the date for satisfying these conditions
which request shall not be unreasonably withheld if the Agency
and County determine the conditions will be satisfied during the
period of the extension. The Plaintiffs acknowledge, that the
effectiveness of the SP Agreement is dependent on this Settlement
Agreement becoming effective.
(a) Hookston Group shall establish an account (the
"Payment Account") with a bank or savings and loan institution
reasonably acceptable to the Agency which provides for
withdrawals from the account only upon signature of an authorized
representative of the Agency and an authorized representative of
the Hookston Group and provides for any interest earnings to be
paid to Plaintiffs and allocated among the Plaintiffs in the
320\01\101421.04 -2-
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manner specified in Section 10 below. Hookston Group shall
deposit to the Payment Account the sum of $1,000, 000 less any
amount the Hookston Group deposits to the Escrow Account
established pursuant to Section 5 of the SP Agreement'.
(b) The Federal District Court has issued an order
approving this Settlement Agreement and the SP Agreement as a
good faith settlement of all claims asserted in the Civil Action
by the parties to those agreements against each ,other, and
barring all claims against SP by any party to the Civil. Action
who is not a party to the SP Agreement. The Plaintiffs agree to
execute any documents reasonably necessary to obtain court
approval of this Settlement Agreement and the SP Agreement as a
good faith settlement.
(c) Hookston Group shall cause execution and recording
of a deed of trust in favor of the Agency as beneficiary on the
real property described in the attached Exhibit E. The deed of
trust shall beina form reasonably acceptable to the Agency and
shall be senior to any other deed of trust or other financial
encumbrance. The deed of trust shall secure the Hookston Group' s
repayment obligation under Section & of this Settlement
Agreement.
(d) The Hookston Group shall execute such documents as
are reasonably necessary to assign to the Agency as security for
Hookston Group' s repayment obligation under Section 5 of this
Settlement Agreement, (i) Hookston Group' s rights to recover any
amounts in the Civil Action against Titra Corporation, ET Mags,
Inc. , Richard Beith, Herman J. Tijsseling and The Wheel Center
(collectively the "ET Defendants") ; (ii) any assignment the
Hookston Group receives from any of the ET. Defendants of claims
against insurers of the ET Defendants; (iii) Hookston Group's
right to recover against the insurers of the ET Defendants; and
(iv) any amounts the Hookston Group recovers pursuant to the
claims or rights described in clauses (i) through (iii) above.
(e) The Hookston Group shall execute such documents as
are reasonably necessary to assign to the Agency as security for
Hookston Group' s repayment obligation under Section 6 of this
Settlement Agreement Hookston Group' s right to receive rents and
rental income from the Hookston Parcel.
(f) The agreement between SP and Sam Young and Sheila
Brutoco has become effective (the "Young Agreement") or SP has
waived the condition to the effectiveness of the SP Agreement
that the Young Agreement be effective.
(g) The County and Agency have entered into a mutual
release agreement with Sam Young and Sheila Brutoco.
320\01\101421.04 `
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Section 2 . Recovery from ET Defendants.
Following the execution of this Agreement, the Hookston
Group shall continue to make good faith and diligent efforts to
recover on behalf of the Hookston Group, County and Agency from
the ET Defendants and/or their insurers in the Civil 'Action or,
if necessary, in a separate action or actions filed against the
insurers of the ET Defendants. Any amount so recovered shall be
paid into the Payment Account, unless there is an amount owing to
the Agency pursuant to Section 6 below in which case the amount
recovered shall be first paid to the Agency to the extent of the
amount owing and the remaining balance shall be paid into the
Payment Account.
Section 3 . Additional Deposits to the Payment Account.
In addition to the amounts recovered pursuant to Section 2.
above, the Hookston Group shall deposit into the Payment Account.
any amounts it recovers from insurers or other defendants in the
Civil Action or in payment or settlement of claims for
contribution, indemnity, or insurance relating to the presence on
the Property of the hazardous materials, contaminants, chemicals
or derivative of chemicals described in the reports listed in
Section 12 below, unless there is an amount owing to the Agency
pursuant to Section 6 below in which case the amountrecovered
shall be first paid to the Agency to the extent of the amount
owing and the remaining balance shall be paid into the Payment
Account .
Section 4 . Payments from Payment Account.
The funds in the Payment Account shall be paid into the
Escrow Account established pursuant to Section 4 of the SP
Agreement and shall be paid out of the Escrow Account for the
remediation of the Property undertaken pursuant to and in
accordance with the SP Agreement (the "Remediation") .
Payments from the Payment Account shall be made only with
the approval of the Agency and Hookston Group, which approval
shall not be unreasonably withheld, and upon signature of the
authorized representative of the Hookston Group and the
authorized representative of the Agency. In addition, the sum of
$37, 577 .77 owing to the Agency pursuant to the First Amendment to
Legal Services Contract among the Agency, the Hookston Group and
other parties shall be paid to the Agency from funds deposited to
the Payment Account in excess of $1, 000, 000.
Once the Remediation has been completed, any funds disbursed
from the Escrow Account shall be paid into the Payment Account
and together with any other funds remaining in the Payment
Account shall be distributed as follows.
720\01\101421.04 -4-
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(a) First, to the Agency for any amounts that remain
owing pursuant to Section 6, if any;
(b) Second, to the County or the Agency for any
amounts awing to either from the Hookston Group pursuant to
Section 9, if any; and
(c) Third, to the Hookston Group.
Section 5 . Agency Advances.
If the Plaintiffs are required to make a payment under the
SP Agreement for the Remediation and there are insufficient funds
in the Payment Account to make that payment, then the Agency
shall make that payment, provided that the maximum amount the
Agency shall be required to pay pursuant to this Section 5 shall
be the lesser of $500, 000 or $1, 500, 000 minus the total amount
paid out of the Payment Account for the Remediation. For
example, if $1, 100, 000 is paid out of the Payment Account for the
Remediation, the maximum amount the Agency shall be required to
pay pursuant to this Section 5 shall be $400, 000 . The amounts
paid out pursuant to this Section 5 shall be advances to the
Hookston Group repayable in the manner set forth in Section 6 .
Section 6 . Repayment of Advances.
If the Agency advances any amount pursuant to Section 5
above, the Hookston Group shall repay that advance with interest
at the Bank of America reference rate in effect from time to time
plus two (2) percentage points. If the advance and accrued
interest thereon have not been repaid from payments made pursuant
to Section 2 or Section 3 above by the date which is five (5)
years following the date the first amount is advanced, then all
amounts advanced together with interest thereon shall immediately
be due and payable.
Section 7 . Additional Agency Payments.
If, after the Agency has made the maximum payment it is
obligated to make under Section 5 above, Plaintiffs are required
to make an additional payment under the SP Agreement for the
Remediation and there are insufficient funds in the Payment
Account to make that payment, then the Agency shall make that
payment, provided that the maximum amount the Agency shall be
required to pay under this Section 7 shall be $1, 000, 000 .
320\01\101421.04 _5
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Section 8. Additional Payments by Agency and-Hookston
Grogp.
If, after the Agency has made the maximum payment it is
obligated to make under Section 7 above, Plaintiffs are required
to make an additional payment under the SP Agreement for the
Remediation and there are insufficient funds in the Payment
Account to make that payment, then the Agency shall make one half
(%) of the payment and the Hookston Group shall make one half (M)
of the payment.
Section 9. Satisfying Obligations of Other Parties .
The Plaintiffs understand and acknowledge that their
obligations to SP under the SP Agreement to pay for the cost of
the Remediation are joint and several and, as a result, if one of
the Plaintiffs defaults and fails to satisfy its obligation under
this Settlement Agreement to contribute to the cost of the
Remediation, the other Plaintiffs will be required pursuant to
the SP Agreement to satisfy the obligations of the defaulting
Plaintiff. In that event, the amount paid by the non-defaulting
Plaintiff or Plaintiffs to satisfy the obligations of the
defaulting Plaintiff shall be immediately due and payable by the
defaulting Plaintiff to the non-defaulting Plaintiff or
Plaintiffs together with interest on the unpaid amount at the
Bank of America reference rate, in effect from time to time, plus
two (2) percentage points. For example, if, under Section 8 , the
Agency is required to pay $100, 000 for the Remediation and the
Hookston Group is required to pay $100, 000 for the Remediation
but the Hookston Group fails to pay its $100, 000, then the Agency
would be obligated under the SP Agreement to pay the Hookston
Group' s $100, 000. When the Agency pays that $100, 0000 on behalf
of Hookston Group, the Hookston Group then becomes obligated
under .this Section 9 to repay that $100,000 to the Agency with
interest .
Section 10 . Interest on Escrow Account .
The interest payable to Plaintiffs on amounts in. the Escrow
Account established pursuant to the SP Agreement and interest on
amounts deposited in the Payment Account establishedpursuant to
this Agreement shall be paid to the Hookston Group unless (i) the
Agency has made an advance pursuant to Section 5 above in which
case the interest shall be paid to the Agency and applied against
the amount owing from the Hookston Group to the Agency pursuant
to Section 6 above or (ii) the Agency has made payments pursuant
to Section 7 or Section 8 above in which case the interest shall
be divided between the Agency and the Hookston Group based on the
proportion of the total cost of the Remediation paid by each.
320\01\101421.04 - -
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Section 11. Joint and Several Liability, of Hookston Group
Members, Limitation on Liability.'
The liabilities and obligations of each member of the
Hookston Group under this Agreement shall be joint and several
obligations of each of them. In no event shall the Agency or
County seek to impose a lien or attach, execute or institute any
other proceedings against the primary personal residence of any
individual member of the Hookston Group in order to satisfy the
obligation of said individual member to the County or the Agency
pursuant to this Agreement.
Section 12 . Claims of Third Parties, SP Indemnity
Obligation.
The Plaintiffs expressly reserve all claims, causes of
action or rights, if any, they may have against each other in
connection with the claims or causes of action of any person or
entity not a party to or bound by the Civil Action, for
contamination, if any, occurring off the Property emanating from
the Property. The Plaintiffs expressly reserve all claims,
causes of action or rights, if any, they may have against each
other in connection with claims or causes of actions '(including
claims, of SP for indemnity pursuant to the SP Agreement) arising
out of Subsequent Contamination as defined in the SP Agreement .
If, pursuant to the SP Agreement the Plaintiffs have an
obligation to indemnify SP for Haber Contamination as defined in
the SP Agreement, the costs of that indemnification shall be paid
fifty percent (50%) by the Hookston Group and fifty percent (Sot)
by the Agency.
Section 13 . Mutual Releases.
Except to the extent expressly reserved or set Horth in this
Settlement Agreement and except for liabilities and obligations
arising under this Settlement Agreement or the SP Agreement, the
County and the Agency, for themselves, their successors, assigns,
heirs, and all persons or entities claiming by, through orunder
any of them, hereby release, acquit and forever discharge each
and every member of the Hookston Group, any of its current
employees, trustees, agents, attorneys and each of their
respective successors, assigns, beneficiaries or heirs under them
(but excluding Sam Young and Sheila Srutoco) , from any and all
obligations, claims, debts, demands, liabilities or causes of
action of any kind, whether known or unknown, save and except to
the extent expressly reserved herein above based upon, arising
out of or in any manner related to the matters alleged or that
could have been alleged in the Civil Action or contamination of
the soil or the groundwater on the Property or emanating from the
Property by any contaminants, chemicals or derivative of
chemicals identified in the reports prepared for or on behalf of
any of the Plaintiffs by Treadwell and Rollo, Inc. , Engeo, and
320`01\101421.04 -7-
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Harding Lawson prior to the effective date of this Settlement
Agreement. Except to the extent expressly reserved or set forth
in this Settlement Agreement and except for liabilities and
obligations arising under this Settlement Agreement or the SP
Agreement, the Hookston Group for themselves, their successors,
assigns, heirs, and all persons or entities claiming by, through
or under any of them, hereby release, acquit and forever
discharge the County and Agency, any of its current employees,
trustees, agents, attorneys, officers and each of their
respective successors, assigns, beneficiaries or heirs under them
from any and all obligations, claims, debts, demands, liabilities
or causes of action of any kind, whether known or unknown, save
(?) and except to the extent expressly reserved herein above
based upon, arising out of or in any manner related to the
matters alleged or that could have been alleged in the Civil
Action or contamination of the soil or the groundwater on the
Property or emanating from the Property by' any contaminants,
chemicals or derivative of chemicals identified in the reports
prepared for or on behalf of any of the Plaintiffs by Treadwell
and Rollo, Inc. , Engeo, and Harding Lawson prior to the effective
date of this Settlement Agreement.
Section 14 . Selection of Representative.
The SP Agreement contemplates that the Plaintiffs will
collectively select a representative who along with a
representative selected by SP will administer the Remediation.
The Plaintiffs agree that their representative shall be Phil
Smith of Treadwell and Rollo. If Mr. Smith declines to serve or
subsequently resigns, the Plaintiffs shall cooperate in selecting
a substitute representative of the Plaintiffs. If Plaintiffs
cannot agree on a representative, the parties shall apply to
JAMS/Endispute who shall select the representative. In addition,
if there is any dispute among the Plaintiffs as to any
instructions or directions to be given the Plaintiffs'
representative, that dispute shall be submitted to binding
arbitration before JAMS/Endispute in accordance with the
procedures set forth in Section 20 of the SP Agreement. The cost
and/or fees of the Plaintiffs' representative shall be paid from
the Payment Account.
Section 1.5 . Miscellaneous.
a. Rules of Construction. The judicial rules of
construction requiring or allowing an instrument to be construed
to the detriment of or against the interests of the drafter of
the agreement shall not apply to this Settlement Agreement.
b. Binding Effect. This Settlement Agreement shall
be binding upon the parties hereto, and each of their respective
successors, assigns and heirs.
320\01\101421.04 "8-
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C. California Law. This Settlement Agreement shall
be construed and enforced in accordance with, and be 'governed by,
the laws of the State of California.
d. Attorneys' Fees and Costs. In any action or
proceeding relating to or arising under this Settlement
Agreement, the successful or prevailing party or parties shall be
entitled to receive, in addition to any other relief to which
'such party may be entitled, reasonable attorneys' fees and costs
in connection with such action or proceeding.
e. Section Headings. The headings of sections of
this Settlement Agreement are for convenience of reference only,
are not to be considered a part hereof, and shall not limit or
otherwise affect any of the terms hereof .
f. Modification of the Agreement. Neither this
Settlement Agreement nor any provisions hereof may be changed,
waived, discharged or terminated orally, but only by instrument
in writing signed by the party against whom enforcement of the,
change, waiver, discharge or termination is sought.
g. Integration. This Settlement Agreement is
intended to supersede all prior negotiations, discussions or
representations, oral or written, leading to this Settlement
Agreement, and each of the parties states that it has read each
of the provisions of the Settlement Agreement and understands the
same .
h. Counterparts. This Settlement Agreement may be
executed in any number of counterparts, all of which together
shall constitute but one original document .
i. Notice. All notices or demands required or
permitted under this Settlement Agreement shall be in writing and
shall be effective if sent by registered or certified mail,
postage prepaid and return receipt requested. Notice shall be
deemed received at the time of the time hand delivered or within
48 hours after the time of mailing. Any party may also give
notice by facsimile transmission, which shall be effective upon
confirmation by the party sending the notice that such facsimile
transmission has been received by the party to whom the notice
has been addressed. Nothing in this paragraph shall prevent the
giving of notice in such manner as prescribed by the California
Rules of Civil Procedure for the service of legal process. Any
party may change its designated representative or address by
giving written notice thereof to the other parties . Notices
effectuating the requirement of this Settlement Agreement shall
be directed as follows :
320\01\101421.04 -9-
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The Hookston Group
c/o Daniel Helix
Helix & Associates
P. O. Box 6144
Concord, CA 94524
FAX:
with a copy to:
Contra Costa County
Contra Costa County Redevelopment Agency
651 Pine Street
Martinez, CA 94553
Attn: Jim Kennedy
FAX: (510) 335-1265
With copies to: Lee C. Rosenthal
Goldfarb & Lipman
One Montgomery Street
Telesis Tower
Twenty-Third Floor
San Francisco, California 94104
FAX: (415) 788-0999
and Sharon Anderson
Deputy County Counsel
P.O. Box 69
Martinez, CA
FAX: (510) 646-1078
Daniel Helix, individually
Mary Lou Helix, individually
Daniel C. Helix, as Co-Trustee
of The Helix Family Living
Trust
320\01\101421.04
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Mary Lou Helix, as Co-Trustee
of The Helix Family Living
Trust
Elizabeth Young
John V. Hook, individually
John V. Hook, as Co-Trustee
Under the Will of Mildred A.
Hook
Steven Pucell, as
Administrator with Will
Annexed of the Estate of
Geneva B. Hook
Steven Pucell, .as ' Co-Trustee
Under the Will of Mildred A.
Hook
Steven Pucell, individually
Nancy Ellicock, as Co-Trustee
Under the Will of Mildred A.
Hook
Nancy Elli.cock, individually
320\01\101421.04 - -
Debra Hook
Karen Heredia
County of Contra Costa
By:
Its :
Contra Costa County
Redevelopment Agency
By:
Its
320`01\101421.04 _ 2"
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EXHIBIT A
Legal Description of the Property
320\01\101421.04 A-1
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EXHIBIT B
Legal Description of the County Parcel
320\01\101421.04
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EXHIBIT C
Legal Description of the Hookston Parcel
320101\101421.04 C-1
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EXHIBIT D
SP Agreement
320\01\101421.04 D-1
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EXHIBIT E
Legal Description of Property
Subject to Deed of Trust
320\01\101421.04 E-1-1
_...
MUTUAL RELEASE AGRSMNT
THIS AGREEMENT is made this day of , 1997, by and
among Samuel Young and Sheila Brutoco (eollect .vely "Youngs") ,
the County of Contra Costa ("County") , a political subdivision of
the State of California, and the Contra Costa County
Redevelopment Agency ("Agency") , a public body corporate and
politic, with reference to the following:
A. Contemporaneously with entering into this Agreement,
the Agency and County have entered into an agreement ("Settlement
Agreement") with certain individuals and trusts referred to
herein and in the Settlement Agreement as the Hookston Group. In
addition, the Agency, County and the Hookston Group have entered
in an agreement (the "SP Agreement") with Southern Pacific
Transportation Company ("SP") and its eventual, successor by
merger, Union Pacific Railroad Company. Both the Settlement
Agreement and SP 'Agreement arise out of the events described in
paragraphs B through G of these recitals.
B. On or about September 30, 1983, the Youngs and the
Hookston Group acquired certain real property in the County of*
Contra Costa, California (the "Property") , more particularly
described in Exhibit A attached to the Settlement Agreement.
C. on •or about June 30, 1989, the Youngs and the Hookston
Group sold a portion of the Property to the County but retained
the remainder of the Property.
D. After discovery of certain hazardous material on the
Property, the Youngs, the Hookston Group, and the Agency and
County (referred to collectively in this Agreement as the
"Plaintiffs") brought a civil action styled as Helix, et al v
Southern Pacific Transportation Co oration et al. ,; Civil Action
No. 92--2312 DLJ (tie "Civil Action") . The Civil Action. is .
presently pending in the United States District Court for the
Northern District of California.
E. In the Civil Action, the Plaintiffs are asserting or
have asserted claims against Southern Pacific Transportation
Company and other defendants, claims under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
("CERCLA") , 42 U.S.C. §99607 and 9613; the Resource Conservation
and Recovery Action ("RCRA") , 42 U.S.C. 56572, negligence,
contribution under California Health and Safety Code 625363 (e) ,
strict liability, nuisance, intentional trespass, negligent
trespass, unjust enrichment, restitution, equitable indemnity,
contractual indemnity, breach of contract and ultrahazardous
activity. SP has asserted claims in the Civil Action against the
Plaintiffs and others.
320\011103914.01 -
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F. Prior to the date of this Agreement, the Youngs
conveyed their remaining interest in the Property to individuals
who are members of the Hookston Group. The Youngs, therefore, no
longer have any interest in the Property.
G. Because the Youngs no longer have an interest in the
Property, the Youngs are not a party to the Settlement Agreement
or the SP Agreement. However, as a condition of the Settlement
Agreement becoming effective, the Youngs must enter into this
Agreement . In addition, as a condition to the SP Agreement
becoming effective, SP and the Youngs must enter into a
settlement agreement providing for mutual release of claims.
H. The implementation of the Settlement Agreement, the SP
Agreement and this Agreement will resolve the Civil Action as to
the parties to those agreements.
THEREFORE, the Youngs, the County and the Agency agree as
follows:
Section 1. No Claims to Proceeds. The Youngs acknowledge
that, in conjunction with conveyance of their interest in the
Property, they have also assigned to the individual members of
the Hookston Group the right to recover in the Civil Action
against Titra Corporation, ET Mags,. Inc. , Richard Beith, Herman
Tijsseling, and the Wheel Center (collectively, "ET Defendants") ,
any right to recover against the insurers of the ET Defendants
and any right to obtain any amounts from insurers of the
Property, the Youngs or other members of the Hookston Group, for
costs of the Civil Action or remediating the hazardous materials
on the Property which are the subject of the Civil Action.
Section 2. Payment to County orAgency. In consideration
for the agreements of the Agency and County pursuant to this
Agreement, the Youngs agree that in the event the Agency makes
any advance pursuant to Section 5 of the Settlement Agreement or,
pursuant to Section 9 of the Settlement Agreement, the Agency
pays any amount to satisfy the obligations of any member of the
Hookston Group to SP under the SP Agreement, the Youngs, subject
to the limitations of this Section 2, shall be jointly and
severally liable with the members of the Hookston Group to the
Agency for repayment of the amounts so advanced or paid. The
Youngs shall be obligated to the Agency pursuant to this Section
2 only to the extent the members of the Hookston Group are
obligated to the Agency under the Settlement Agreement. In no
event shall the amount the Youngs are obligated to pay the Agency
pursuant to this Section 2 exceed $50, 000 in the aggregate.
Section 3 . Mutual Release with SP. At the request of the
Agency, the Youngs shall execute a settlement agreement with SP
in the form and substance attached hereto as Exhibit A.
320\01\103944.01 u 2
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Section 4 . Mutual Releases. Except for liabilities and
obligations arising under this Agreement, the County and the
Agency, f or themselves, their successors, assigns, heirs, and all
persons or entities claiming by, through or under any of them,
hereby release, acquit and forever discharge the Youngs, any of
their current employees, trustees, agents, attorneys and each of
their respective successors, assigns, beneficiaries or heirs
under them from any and all obligations, claims, debts, demands,
liabilities or causes of action of any kind, whether known or
unknown, based upon, arising out of or in any manner related to
the matters alleged or that could have been alleged in the Civil
Action or contamination of the soil or the groundwater on the
Property or emanating from the Property by any contaminants,
chemicals or derivative of chemicals identified in the reports
prepared for or on behalf of any of the Plaintiffs by Treadwell
and Rollo, Inc. , Engeo, and Harding Lawson prior to the effective
date of this Agreement. Except for liabilities and obligations
arising under this Agreement, the Yourigs for themselves, their
successors, assigns, heirs, and all persons or entities claiming
by, through or under any of them, hereby release, acquit and
forever discharge the County and Agency, any of its current
employees, trustees, agents, attorneys, officers and each of
their respective successors, assigns, beneficiaries or heirs
under them from any and all obligations, claims, debts, demands,
liabilities or causes of action of any kind, whether known or
unknown, based upon, arising out of or in any manner related to
the matters alleged or that could have been alleged in the Civil
Action or contamination of the soil or the groundwater on the
Property or emanating from the Property by any contaminants,
chemicals or derivative of. chemicals identified in the reports
prepared for or on behalf of any of the Plaintiffs by Treadwell
and Rollo, Inc. , Engeo, and Harding Lawson prior to the effective
date of this Agreement.
Section 5 . miscellaneous.
a. This Agreement shall be governed by the laws of
the State of California.
-3-
b. This Agreement and, to the extent referenced in
this Agreement, the Settlement Agreement and SP Agreement,.
constitute the entire agreement of the parties as to ,the subject
matters of this Agreement.
Samuel Young
Sheila Brutoco
County of Contra Costa
By:
Name:
Title:
Contra Costa County
Redevelopment Agency
By:
Name:
Title:
320\01\103944.01 - r
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EXHIBIT A
SETTLEMENT AGREEMENT
This Settlement Agreement is entered into as of this
day of I 1.997gg? by and among Southern Pacific
a
Transportt i3 n Company ("Southern Pacific") and Samuel P. Young
("Young") and Sheila Brutoco {"Brutoco") .
RECITALS
A. The Civil Action. The civil action styled as Helix et
al. v-.-- Southern Pacific Transportation Corporation et al. , Civil
Action No. 92-2312 DW is presently pending in the United States
District Court for the Northern District of California, before
Judge D. Lowell (the "Civil Action") .
B. Resolution of Claims intheCivil Action. The parties
to this Settlement Agreement desire to settle the claims against
each other pursuant to this Settlement Agreement.
AGREEMENT OF THE PARTIES
1. Dismissal of Claims With Prejudice. Southern Pacific
shall dismiss with prejudice all claims asserted against Young
and Brutoco in the Civil Action and Young and Brutoco shall
dismiss with prejudice all claims against Southern Pacific in the
Civil Action, each party to bear its, his or her own attorneys,
fees and costs in the Civil Action. The parties shall file with
the Court a Joint Stipulation of Dismissal in the form of Exhibit
A promptly upon execution of this Agreement.
2 . Mutual Release of Claims. Southern Pacific, for
itself, successors and assigns, and all persons or entities
claiming by, through or under it, hereby releases, acquits and
forever discharges Young, Brutoco, their employees, agents and
.attorneys, and each of their respective successors, assigns or
heirs, and Young and Brutoco, for themselves, their successors,
.assigns, heirs, S&D Leasing and all persons or entities claiming
by, through or under them hereby release, acquit and forever
discharge Southern Pacific, is -predecessors, successors,
affiliates and their respective employees, agents and attorneys,
and each of the respective successors, assigns or heirs, from any
320\01\103944.01 A-1
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and all obligations, claims, debts, demands, liability or causes
of action of any kind based upon, arising out of or in any manner
related to the matters alleged in the Civil Action.
Dated, Southern Pacific Transportation Company
By:
Its:
Dated:
Samuel P. Young
Dated:
Sheila Brutoco
320\01\103944.01 A-2
FISCAL IMPACT
No General Fund obligation is required. A contingent obligation for unforeseen remediation costs
is solely the responsibility of the Redevelopment Agency. Technical consultants familiar with
remediation have indicated that the likelihood of unforeseen costs is small, but not zero.
BACKCR UND/R ASON FOR RECOMMENDATIONS
In 1989 the County, utilizing Redevelopment Agency and State funds,purchased five acres of the
eight-acre Hookston Station property. The Hookston Station property was purchased from Daniel
Helix, John Hook, Samuel Young, at al (the "Hookston Group"). The property, formerly part of the
Southern Pacific right-of-way, was purchased for a public road and trail<project. In the course of its
acquisition of the property, the County tested the soil and found that it was contaminated with
solvents, the central component of which is trichloroethylene ("TCE"), as well as petroleum
hydrocarbons.
In June, 1992 a lawsuit was filed by the Property Owners against Southern Pacific and the other
responsible parties to recover costs incurred responding to the contamination. Southern Pacific
owned the Hookston Station site from 1890 to 1983. Indications are that contamination most likely
occurred prior to 1988, however, that cannot be established with absolute certainty.
The Helix, et al v. Southern Pacific action was subject to mediation. This mediation resulted in a
global agreement which has been reduced to written agreements containing the terms described
below. Southern Pacific and the Hookston Group has approved the settlement agreements. The
terms of the settlement agreement are:
1. The Hookston Group, Southern Pacific, and the County agree to support the adoption
by the Regional Water Quality Control Board of a horizontal well remediation system;
2. The parties are jointly responsible for securing approval of the horizontal well
remediation system;
3. The Hookston Group and the County/RDA, on the one hand, will jointly fund with
Southern Pacific $3,000,000 for the site remediation;
4. Southern Pacific and the Hookston Group shall, in equal part, pay the first $2,000,000
for site remediation;
5. Of the next $1,000,000 for site remediation, the County/RDA may advance up to
$500,000 to the Helix Group. Such advance would be required only if amounts are not
recovered from E.T. Mags, Titra Corporation, or their insurers. Any such advance
would be repaid by the Hookston Group with interest, ',and secured by pledges of
income from property owned by Hookston Group, and by Hookston Group's rights
against ET Mags, Titra Corporation, and their insurers;
6. Should site remediation costs exceed $3,000,000, the Hookston Group and the County
on the one hand, and Southern Pacific on the other hand,' shall pay, on a 50/50 basis,
the additional "unforeseen costs;,,
A. As to the Helix and County/RDA portion of "unforeseen costs," the first
$1,000,000 is the RDA, with amounts above $1,000,000 split 50/50 between the
Helix Group and County/RDA;
7. Southern Pacific and the Hookston Group/County and RDA shall jointly choose a lead
remediation contractor, and shall each designate a representative to oversee the work;
8. The Settlement Agreement provides for the Central Sanitary District to provide reduced
rates for disposal of produce from the remediation;
9. The Mutual Release Agreement with the Youngs involves a former property owner with
no current interest. Young would be required to reimburse the RDA for up to$50,000
of unforeseen costs.
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MUTUAL RELEASE AND SETTLEMENT AGREEMEN'1
Helix v. Southern Pacific Transportation Company, et',al.
1. Parties.
1.1 The parties to the Mutual Release and Settlement Agreement (the
"Agreement") are: Daniel C. Helix, Mary Lou Helix, Daniel C. Helix and Mary Lou
Helix as co-trustees of the Helix Family Living Trust, Elizabeth Young, John V. Hook,
Geneva Hook and John V. Hook and Steven Pucell as co-trustees under the will of
Mildred A. Hook, the Contra Costa County Redevelopment Agency, and the County of
Contra Costa (hereinafter "Plaintiffs") and Nancy C. Ellicock, Steven Pucell, Debra,
Hook, Karen H. Heredia, and S&D Leasing Company (hereinafter "Third Party
Defendants"), Southern Pacific Transportation Company(hereinafter "Southern Pacific")
and Central Contra Costa Sanitary District (hereinafter "District). Plaintiffs, Third Party.
Defendants and Southern Pacific are collectively hereinafter referred to as the " Settling
Parties."
1.2 All employees, agents, owners, officers, directors, supervisors,
shareholders, and successors of the above-listed parties are included as parties released
by this Agreement.
1.3 Not all "Plaintiffs" in the litigation described in Section 2.1 herein are party
to this Agreement. In particular, Samuel P. Young and Sheila Brutoco'are not executing
1 P:\OHS\TCS.O1R\0142513.08
this Agreement. Samuel P. Young and Sheila Brutoco, accordingly, are not released by
this Agreement. To the extent that Samuel P. Young and/or Sheila Brutoco has any
partnership interest or other interest in S&D Leasing Company, and to the extent that this
Agreement is in any manner interpreted to benefit Samuel P. Young and/or Sheila
Brutoco by virtue of S&D Leasing Company being a party hereto, said benefits shall be
limited solely to partnership assets and partnership liabilities of S&D Leasing Company.
This Agreement, except as noted above concerning S&D Leasing Company, is not
intended to benefit Samuel P. Young or Sheila Brutoco in any other manner, directly or
indirectly, except to the same extent that non-signatory parties to this action may benefit
by this Agreement.
2. Introduction.
2.1 The parties to this Agreement have .been involved in a dispute which.
resulted in civil litigation in U.S. District Court, Northern District of California, the case
being more specifically identified as Helix v. Southern Pacific Transportation Company,
et al., Case No. C92-2312 DLT (the " ell Civil Action"). The dispute and litigation
arose from allegations by Plaintiffs that Southern Pacific and the District, among others,
had contaminated certain property known as the Hookston Station site, as referred to in
the complaint, including the soils, subsoils and groundwater. Southern Pacific and the
District denied those allegations and contended in counterclaims, cross-claims and third
party claims that the remaining parties to this Agreement, among others, were solely
2 f.\OMS\TCS.D1R\0142513.08
responsible for said contamination. The Hookston Station site is more specifically
described in Exhibit A attached hereto.
3. Settlement Contribution.
3.1 The District agrees to authorize Settling Parties to discharge groundwater
in connection with the remediation of the Hookston. Station site to the District sewer
system at reduced rates pursuant to the terms of the Agreement. The Settling Parties
shall be entitled to reduced rates for a 10-year period commencing upon the earlier of the
first discharge of effluents under the Agreement or 24 months after the effective date of
the Agreement. The amount of reduction of rates; fees-and-charges shall vary depending
on whether pretreatment of the discharged groundwater is required. If pretreatment of
the discharged groundwater is required, all rates, fees and charges shalt be reduced 55%
from standard District rates, fees and charges; if no pretreatment of the discharged
groundwater is.required, all rates, fees and.charges shall be reduced 4.5% from standard
District rates, fees and charges (hereinafter, the "Percentage Reduction"). Failure to use
a portion of the 10-year period of rate reduction within twelve years of the effective date
of this Agreement shall result in a waiver of that portion of the rate reduction benefits by
the Settling Parties. Said standard District rates and charges may be revised by the
District during the term of the Agreement as part of ordinary District rate setting
practices, and if so, the Settling Parties still shall be entitled to the Percentage Reduction
of such revised amount. No such change in rates and charges may be designed to
disproportionately affect the Settling Parties' rates and charges for discharging
3 F.wt{s\res.ota\0142513.08
groundwater relative to other members of the same rate classification. District rates
charged with respect to the Capital Improvement Fees (i.e. connection fees) shall be the
rates charged for industrial users in effect at the time of the application for a discharge
permit and shall not be increased during the term of this Agreement. Industrial discharge
fees and permit and sewer service rates, however, are not fixed and are subject to change
subject to the foregoing limitations. (Attached as Exhibit B is a list of the current District
rate schedules applicable-hereto.)
3.1.1 Sewer service rates and connection fee rates shall be charged
by the District based on gallons per minute (gpm) flow of discharge of groundwater, the
concentration level of suspended solids and the concentration level of biochemical oxygen
demand (hereinafter "BOD"). Standard District.rates and charges for sewer service,
capital fees for connection and industrial permit and discharge fees for the first five years
of discharge of effluents by the Settling Parties pursuant to this Agreement shall be
reduced by the Percentage Reduction based on the actual gpm of discharged groundwater,
not to exceed an annual average flow of 60 gpm, with a maximum instantaneous flow-of
120 gpm. Annual average flow for purposes of this Agreement shalt be calculated based
on the reading of an in tine totalizing flow rate meter and,a 365-day year from the date,
of the first discharge of effluents under this Agreement. If the concentration level for
BOD is 50 mg/l or less, the rate charged shall be the same as if the concentration level
of BODs were 0 mg/l. Similarly, if the concentration level for suspended solids is 50
mg/l or less, the rate charged shall be the same as if the concentration level of suspended
4 F:\OMSXTCs.O1R\0142513.O8
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solids were 0 mg/l. The terms "BOD" and "suspended solids" are defined in Exhibit C
attached hereto. The above Percentage Reduction of rates and charges does not apply.to
any fines and enforcement penalties that may be imposed under appropriate circumstances
by the District.
3.1.2 - The Settling Parties also shall be entitled to a second five years
of groundwater discharge at the same Percentage Reduction from standard rates on the
same basis as set forth in 3.1.1 except that the limit on the discounted rates shall be an
annual average flow of 30 gpm rather than 60 gpm for this second five years of
groundwater discharge.
3.1.3 If the concentration level of BOD exceeds 50 mg/l, the rate
charged for BOD for the period of time during which the concentration level of BOD
exceeds 50 mg/1 shall be based on'the actual concentration level of BOD (as opposed to
0 mg/1), but such rate shall still be subject to the Percentage Reduction. If the
concentration level of suspended solids exceeds 50 mg/l, the rate charged for suspended
solids for the period of-time during which the concentration level of suspended solids
exceeds 50 mg/l shall be based on the actual concentration level of suspended solids (as
opposed to 0 mg/1), but such rate shall still be subject to the Percentage Reduction. Rates
shall be billed by the District on an annual basis measured from the date of first discharge
under this Agreement, unless otherwise agreed by the District and the Settling Parties..
If the annual average gpm flow for a given 365-day period exceeds the relevant annual
average limitation set forth above, such flow in excess of the relevant annual average
5 F:\OMS\TCS.D1R\0142513-08
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shall not be subject to a discount and shall be charged at standard District rates, but the
Settling Parties still shall be entitled to the Percentage Reduction for the discharges during
that 365-day period that are at or less than the relevant annual average limitation.
Nothing herein shall be deemed to authorize flow in excess of 120 gpm. Total volume
flow in excess of 120 gpm, if authorized by the District, shall be subject to any permit
conditions as are reasonably necessary to address such flows.
3.1.4 If the Settling Parties, or any of said parties, elect to continue
discharge of groundwater beyond the period to which they are entitled to of 10 years of
discharge at discounted rates pursuant to this Agreement, the District may charge its then
standard rates and charges, without reduction, for such continued discharge. Nothing
contained herein is intended to limit the rights of the Settling Parties to continue
discharging to the District Sanitary System from the Hookston Station site after the term
of this Agreement has expired, provided that the Settling Parties comply with the District
regulation and permit requirements, and pay all applicable fees.
3.1.5 The groundwater discharge shall not have a total volatile
organic compound (TVOC) level exceeding 1.00 mg/l. The discharge shall be subject
to such further additional limits as are ordinarily imposed by the District based on the
available information, including an umbrella limit of total toxic organic compounds
(TTOC) of 2.10 mg/1. The terms "TVOC" and "TTOC" are defined in Exhibit C.
3.1.6 This Agreement is subject to all applicable District Procedures
and Requirements as set forth in the District Code, including. Title 10 (Source Control),
6 F:\OHS\TCS.OiR\014?513.08
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Title 9 (Sewers) and Title 6 (Fees and Charges), as amended from time to time, as well
as policies and resolutions adopted thereunder. In particular, this Agreement shall be
subject to the District's standard.industrial user permit process. This Agreement is not
intended to constitute a permit or replace standard permit requirements.
3.1.7 The discharge shall be subject to such additional limits and
conditions as may be imposed by relevant regulatory agencies, such as the Department
of Toxic Substances Control and the Regional Water Quality Control Board.
3.1.8 The TVOC concentration limit set forth hereinabove controls
over the more general District Code provisions, including amendments. The specific
concentration limits agreed to herein are subject to change as reasonably necessary to
comply with a change in federal, state or local laws or regulations, to meet a new
regulatory interpretation .of existing federal, state or local laws or regulations, or to
prevent or cure any violation of any relevant federal, state or local law including relevant
NPDES permit requirements which impact on District source control operations and
discharges to or from the District sanitary sewer system (collectively referred to herein
as "change in law") provided the Settling Parties' discharge has a substantial effect on the
District's ability to comply with such change in law, either by itself or in combination
with other similar discharges. The change in specific concentration limits resulting from
a change in law shall not be borne disproportionately by the Settling Parties relative to
other similar dischargers and shall only be borne by Settling Parties to the extent
reasonably necessary to comply with such change in law.
7 F:WN8\TCs.UIR\0142513.08
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3.1.9 if the Settling Parties terminate discharge of groundwater to
the District Sanitary sewer system prior to the end of the ten-year period of the
Percentage Reduction, Settling Parties shall so advise the District, in writing, of said
termination within a reasonable time thereafter. If the Settling Parties intend to continue
discharge of groundwater to the District sanitary sewer system beyond', the ten years of
Percentage Reduction provided for herein, then the Settling Parties shall provide the
District written notice within ninety (90) days prior to the date on which the ten years of
Percentage Reduction terminates, of the Settling Parties' intent to continue discharging
beyond the ten-year period of Percentage Reduction.
4. Acknowledgments and Conditions of Settlement.
4.1 The Settling Parties who direct the cleanup and remediation efforts or
contract therefor shall be responsible for compliance with the District's 'requests for tests
of the groundwater being discharged to the District sewer system. The frequency of
testing required by the District as part of its permit conditions, or otherwise, shall be
dependent on factors to be determined at the time of permit application, but such testing
requirements must be reasonable, based on the methods and conditions of discharge.
Such factors may include, but are not limited to, pretreatment procedures utilized and the
closeness of the contaminant concentration levels to the limits set forthin Title 10. The
District may increase the frequency of testing with time as reasonably necessary to ensure
compliance with the applicable District, state and federal discharge limits and conditions,
based on then available information. The test results shall set forth'the findings and
8 F:\OMS\TCS.D1R\014Z513.08
content levels with respect to any contaminants in said discharge. The report or test data
shall include data on BUDS, suspended solids, TVOCs and TTOCs and such other items
as the District may reasonably require pursuant to Title 10 of the District Code. Copies .
of all such data, test results and reports shall be promptly furnished to the District. Such
testing frequency required herein may be reduced by the District depending on, but not
limited to, such factors as the reliability of the testing procedures utilized and on
consistent test results indicating compliance with the levels set forth in this Agreement,
and further provided the test results indicate compliance with applicable District, state and
federal agency discharge limits and conditions including limits as adopted by resolution
under Title 10 of the District Code (e.g., TVOC and TTOC). if the District authorizes
discharge without pretreatment, required testing may be more frequent. Nothing
contained herein shall be deemed to commit the District to accepting untreated
groundwater unless the divisions at the Regional Water Quality Control Beard responsible
for site mitigation and for pretreatment/source control approve or authorize it. Nothing
contained herein shall be deemed to commit the District to accept any particular means
of pretreatment which is not in compliance with District and other relevant agency
regulations. The location, design and construction of the discharge connection to the
District sewer system shall be subject to District approval, which approval shall not be
unreasonably withheld. As part of the permit process, the Settling Parties shall provide
the District with an on-site sampling location agreeable to the District to conduct
unannounced random sampling during the term of this Agreement(the "On-Site Sampling
9 Ft\0NS\TCS.OIR\0142513.08
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Location"). The District also shall have the right to enter the Hookston Station site
during normal business hours, upon reasonable notice (not less than two business days)
and subject to reasonable coordination with the Settling Parties so as not to impair the
remediation or cleanup efforts, to conduct random sampling of effluent discharged by the
treatment system to the District at locations other than at the On-Site Sampling Location
and to conduct site investigations of such discharges as may be reasonably necessary to
ensure compliance with the applicable District, state and federal discharge limits -and
conditions. The District shall be responsible for all expenses of District sampling and site
investigation., beyond the amounts included as part of the industrial user permit fees, and
shall be responsible for any property or other damage or injury caused by its sampling
or site investigations, and shall restore the property at its expense to the condition existing
immediately prior to the sampling or site investigation by the District or its
representative. If the District conducts sampling, the District will provide the Settling
Parties with a split sample of any sample collected by the District unless] the District and
the representative for the Settling Parties agree otherwise. The District shall promptly
provide the Settling Parties with a copy of all data generated by its,sampling and site
investigation of the Hookston Station site.
4.2 If a test result reflects a violation of relevant federal, state or local discharge
limits, the District may impose such further conditions on discharge of effluents as are
reasonably necessary to address such violation(s). Site specific conditions shall be
reasonable and not arbitrary.
10 F:\M\TCS.01R\0142513.08
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4.3 The site conditions involved herein are somewhat unique to the District.
The District does not routinely deal with such site conditions, or accept groundwater
pumped in such a volume as contemplated herein, treated or otherwise, from other
dischargers. The District will, however, establish permit conditionsconsistent with
District programs and with the requirements of Title 10 of the District Code. The unique
or different site conditions involved herein may result,in District permit conditions that
do not precisely mirror District treatment of other industrial dischargers. The District
will, however, operate in good faith in setting any such permit conditions. The District
will not impose any arbitrary or unreasonable requirements or any requirements
inconsistent with Title 10 and/or with general District program objectives.
4.4 The Settling Parties, for themselves and all persons or entities claiming by
or through them, release, acquit and discharge the District and its current and former
directors, officers, employees and agents,- and their respective successors, heirs and
assigns, and the District, for itself and all persons or entities claiming by or through it,
releases, acquits and discharges each of the Settling Parties, their parent companies,
affiliates and subsidiaries, and each of their respective current and former officers,
directors, employees, shareholders and agents, and their respective successors, heirs and
assigns, except as provided in Section 1.3 above, from all existing claims, liabilities,
damages, injuries, attorneys' fees, expenses or causes of action of any kind whatsoever,
including but not limited to, claims for,contribution or indemnity in this action or in other
actions or proceedings(whether or not those other actions or proceedings involve persons
1 f:\0HSITCS.OIR\0142513.08
or entities not a party to the Helix Civil Action), and all subrogation, claims and any
subrogation rights held by any insurer of the parties to this Agreement, and any claims
by third parties including regulatory agencies, whether known or unknown and whether
accrued or unaccrued, in any way connected with or arising out of any of the following:
4.4.1 All matters arising out of or relating to the.lawsuit known as.
Helix v Southern Pacific Transportation Company et at;
4.4.2 Ownership, design, plans, maintenance, construction, repair
and/or operation of the District's sanitary sewer system and of any sewer systems
connected thereto in any manner related to the Hookston Station site or the He ix Civil
Action;
4.4.3 Ownership or leasing of the Hookston Station site; or
4.4.4 The alleged contamination arising from or attributable to the
Hookston Station site.
4.5 The Settling Parties agree that the District shall have no duties, liability or
obligations to the Settling Parties with respect to cleanup and remediation of the Hookston
Station site except as specifically provided herein.
4.6 Upon execution of this Agreement and compliance with the conditions set
forth in Section 4.8 including approval of this Agreement by the court as provided herein,
the Settling Parties shall execute and promptly file a dismissal with prejudice as.to all
claims directed to the District in the Hg ft Civil Action and the District shall execute and
12 f:\0KS\TCS.0IR\0142513.08
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file a dismissal with prejudice as to all claims directed to the Settling Parties in the HdLx
Civil Action.
4.7 Each party represents that said party has not assigned any rights, claims or
causes of action related to the Helix Civil Action to any person or entity as of the date
of signing this Agreement.
4.8 This Agreement shall be subject to, and conditioned upon,the court entering
an order, as substantially set forth in Exhibit D attached hereto, approving this
Agreement. This Agreement shall, in addition, be subject to, and conditioned upon,
Samuel, P. Young and Sheila Brutoco dismissing their claims against the District with
prejudice in the Helix Civil Action within thirty(30) days of execution of this Agreement
by the Settlement Parties and the District.
4.9 The parties agree to execute any documents reasonably necessary to
effectuate the terms of this Agreement, including any documents reasonably necessary to
obtain court approval of the Agreement as a Good Faith Settlement in substantially the
form of Exhibit D.
4.10 The Settling Parties shall have the right, but not the obligation, to appeal
any decision, action or determination of the staff of the District affecting or relating to
this Agreement to the General Manager/Chief Engineer of the District by filing a written
request for reconsideration with the General Manager/Chief Engineer within 15 days of
written notification of such action, decision or determination. The Settling Parties also
shall have the right, but not the obligation, to appeal any decision of the General
13 f.\DXSkTCS.OIR\0142513.08
Manager/Chief Engineer to the District Board within 10 days of written notification of
the General Manager/Chief Engineer's action, decision or determination.
Notwithstanding the above, if any party believes such a hearing or hearings would be
meaningless; said party shall promptly notify the other parties accordingly. The parties
may then proceed with other resolution alternatives, including litigation, and the failure
to appeal to the General Manager/Chief Engineer or the District Board shall not constitute
or be deemed a failure to exhaust administrative remedies, nor shall it constitute a defense
to a claim or proceeding. Nothing herein, however, is deemed to waive requirements for
compliance with California Government Code claims previsions.
5. California Civil Code Section 1542.
5.1 The Settling Parties and the District each understand and agree that this
Agreement extends to all claims of every nature and bind whatsoever which relate to or
arise from the occurrence of the alleged contamination of the Hookston Station site and
groundwater, and to any alleged damages or injuries resulting therefrom, known or
unknown, suspected or unsuspected, and hereby expressly, knowingly and freely waive
all rights under Section 1542 of the California Civil Code. Said Section 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.
14 F:\OHS*%TCS.OIRl0142513.08
6. Definitions.
6.1 As used in this Agreement, the term "damages" and "claims" are all
inclusive and extend to damages and claims related to property, real or personal, tangible
or intangible, and injuries of all kinds, physical, mental or otherwise, to persons. As
used in this Agreement, the neuter pronouns and possessive include the masculine and
feminine.
7. Compromise/No Admission of Liability.
7.1 Each and every party to this Agreement agrees that it is entered into as a
compromise and agrees that the release or performance of the conditions of this release
is not an admission of liability, rights or obligation to remediate the Hookston Station site
by any party. In fact, the parties to this Agreement.specifiically deny liability. This
Agreement is entered into as a compromise to make peace and with the specific intent and
understanding that it is without precedential value. It is not intended to, nor shall it be
construed as, an 'interpretation of any other agreement and shall not be used as evidence,
or in any other manner, in any court, dispute resolution proceeding or administrative
hearing or other proceeding, to create, interpret or prove the obligation or liability of any
party to this Agreement to any other party to this Agreement (except in an action to
enforce this Agreement) or to any non party to this Agreement.
7.2 This Agreement is intended to confer rights and benefits only on the
signatories and their respective employees, agents, owners, officers, directors,
supervisors, shareholders and successors and is not intended to confer any right or benefit
15 F:\DMS\TCS.D1R\014Z513.08
upon any other person or entity except and only to the extent that the release in Section
4.4 applies to other persons or entities. In particular, see the provisions of Section 1.3,
limiting the applicability of this Section 7.2. No person or entityother than the
signatories hereto and their respective employees, agents, owners, officers, directors,
supervisors, shareholders and successors shall have any legally enforceable right under
this Agreement. All rights of action for any breach of this Agreement are specifically
reservers to the signatories-hereto. Nothing contained in this Section 7.2 shall diminish
the protection of the release language in Section 4.4 available to individuals or entities
otherwise subject to Section 4.4 of the Agreement.
8. Release as Contract.
8.1 This Agreement is not a mere recital, but is a binding contract on the
parties. Each party entering into this Agreement is acting on said party's own judgment
and investigation of the facts and the law, and is not relying in any manner on
representations of any panty to this Agreement, or on any other representations or
undertakings, except those expressly contained in this Agreement.
9. Retention of Originals. .
9.1 The Plaintiffs and Third Party Defendants, as one party, shall retain an
original executed Agreement. The County of Contra Costa, the District and Southern
Pacific shall each retain an original executed Agreement.
16 f:\DMS\Tcs.o1R\0142513.08
............................................................................................................
..........................................................
10. Attorney's Fees.
10.1 Each party this Agreement shall bear its, his or her own attorney's fees and
costs in connection with the Mix Civil Action.
10.2 If any party to this Agreement, shall employ legal counsel to enforce any
term or provision of this Agreement, the party or parties prevailing in any resulting legal
action shall be entitled to recover from the non-prevailing party or parties all of its
reasonable attorneys' fees, costs and expenses incurred in connection with enforcing the
Agreement.
11. Entire Agreement.
11.1 No representations, warranties or covenants, except as set forth herein or
as may be entered into in writing subsequent hereto, shall be binding upon the parties.
This Agreement is an integrated agreement and contains the entire agreement of the
parties hereto. This Agreement supersedes any and all prior and contemporaneous
understandings and agreements With reference.to the subject matter of.this Agreement,
which prior and contemporaneous understandings and agreements are merged herein. No
prior or contemporaneous representation or promise pertaining to this Agreement or the
subject matter hereof shall be binding upon any of the parties except as expressly stated
in this Agreement.
12. Warranty-of (;opacity to Execute This Agreement.
12.1 Each party represents and warrants to the other parties hereto that the
execution and delivery of this Agreement has been duly and validly authorized and
17 F:\Df4S\TCS.0[R\0142513.08
...................
_.... ......... ......... ......... .................
.. ........ .._....... ......... ......... ......... ......... ......... ......... ......_..
_. ......... ......... ......... ......... . ........ .........
.._............................
approved by all requisite corporate action, public resolution or court order and that no
further action is necessary to make this Agreement and all transactions contemplated
hereby valid and binding on each of the parties hereto in accordance with the terms
hereof, subject to the requirement of court approval pursuant to Section 4.8 above.
12.2 Each party further represents and warrants to the other parties hereto that
said party has the sole right and exclusive authority to execute this Agreement and incur
the obligations or receive the benefits specified herein with respect to said party.
12.3 * Each party represents that it has read this Agreement and knows the contents
thereof, and that the terms thereof are contractual and not by way of recital, and that it
has signed this Agreement of its own free act. Each party represents that it has obtained,
or had the opportunity to obtain, legal consultation regarding the terms and execution of
this Agreement.
13. Governing Law.
13.1 This Agreement is entered into and shall be construed and interpreted in
accordance with the laws of the State of California.
14. Miscellaneous.
14.1 This Agreement may be signed in separate counter parts and shall become
effective immediately upon its execution by the parties hereto, each copy having the same
force and effect as an original.
14.2 This Agreement shall be binding on and inure to the benefit of the
successors, agents, representatives and assigns of the parties.
18
F:\DHS\TCS.DIR\0142513.08
14.3 The effective date of this Agreement shall be the date upon which all
conditions precedent to validity of this Agreement have occurred, including without
limitation, execution of the Agreement and entry of an Order by the Court in the Helix
Civil Action approving the Agreement, said Order to be in substantially the form as set
forth in Exhibit D.
1.4.4 This Agreement shall have a term of 12 years from the effective date of this
Agreement. The provisions of Section 3.1.4, 4.4 and its subsections, 4.5, 5.1, 7.1, 7.2,
13.1 and 14.2 shall survive the 12 year term of this Agreement.
Dated:
Daniel C. Helix, in his individual capacity
Dated:
Mary Lou Helix, in her individual capacity
Dated:
Daniel C. Helix, as co-trustee of the Helix
Family Living Trust,
Dated:
Mary Lou Helix, as co-trustee of the Helix
Family Living Trust
Dated:
Elizabeth Young
19 F:\DNS\TCS.0IR\0142513-08
Dated:
John V. Hook, in his individual capacity
Dated:
John V. Hook, as co-trustee under the will
of Mildred A. Hook
Dated:
Steven Pucell, in his individual capacity
Dated:
Steven Pucell, as co-trustee under the will
of Mildred A. Hook
Dated:
Geneva Hook
Dated: The Contra.Costa County Redevelopment
Agency
By:
.Dated: The County of Contra Costa
By:
20 F:\OKS\TCS.OtR\0142513.08
Dated:
Nancy C. Ellicock
Dated:
Debra Hook
Dated:
Karen H. Heredia
Dated: S & D Leasing Company
By:
Dated: Southern Pacific Transportation Company
By:
Dated: Central Contra Costa Sanitary District
By:
Approved as to Form:
21 F:\DK51TC5.OIR\0142513.08
.................................................................................................
. ........................................................
By:
District Counsel
Central Contra Costa Sanitary District
By:
County Counsel
County of Contra Costa
By:
Counsel for
Contra Costa County Redevelopment Agency
By:
Counsel for Plaintiffs and Third Party
Defendants
By:
Counsel for Southern Pacific
Transportation Company
22 F-\b14S\TCS.OIM,0142513.08
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_.._. _... ._....... ......... ......... ......... .............._.
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SETTLEMENT AGREEMENT -
This Settlement Agreement (the "Agreement" ) is entered into by
and among Southern Pacific Transportation Company, and its eventual
successor by merger, Union Pacific Railroad Company (collectively
referred to hereinafter as "Southern Pacific" ) and ,Daniel Helix,
Mary Lou Helix, Daniel C. Helix and Mary Lou Helix as Co-Trustees
of the Helix Family Living Trust, Elizabeth Young, John V. Hook,
Steven Pucell, Administrator With 411 annexed, an"" Nancy Ellicock,
Administrator with Will annexed, of the Estate of Geneva B . Hook,
and John V. Hook and Steven Pucell as Co-Trustees Under the Will of
Mildred A. Hook (the "Hookston Group" ) and Contra Costa County (the
"County" ) , the Contra Costa County Redevelopment Agency
( "Redevelopment Agency") , and third-party defendants', Debra Hook,
Nancy Ellicock, Karen Heredia, and Steven Pucell ("Third-Party
Defendants" ) . For purposes of this Settlement Agreement, the
Hookston Group, the County, the Redevelopment Agency, and Third-
Party Defendants shall be referred to as "Settlors'" . For the
purposes of this Agreement, the Hookston Group and the County shall
be referred to collectively as the' "Hookston Owners. "
RECITALS
A. The Civil Action. The civil action styled Helix. et al .
v. Southern Pacific Transportation Cor-poration et al Civil
Action C922312 DLJ, is presently pending in the United States
District Court for the Northern District of California, before
Judge D. Lowell Jensen (the "Civil Action" ) . The Hookston Group
246 .0546\agreemnt.3 1 JTS&B DRAFT: 5/23/57
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and the County are plaintiffs in the Civil Action and are asserting .
or have asserted claims against Southern Pacific and other
defendants, including without limitation, Herman J. Tijessling
Enterprises; Titra Corporation; E.T. Mags, Inc . , the Wheel Center,
Richard Beith, Central Contra Costa Sanitary District, and Haber
Oil Company alleging, inter glia, claims under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1480
("CERCLA" ) , 42 U.S . C. §§ 9607 and 9613 ; the Resource Conservation
and Recovery Act ( "RCRA" ) , 42 U.S . C. § 6472 ; negiicence;
contribution under California Health and Safety Codd § 25363 (e) ,
strict liability, nuisance, intentional trespass , negligent
trespass, unjust enrichment, restitution, equitable indemnity,
contractual indemnity, breach of contract and u'ltrahazardous
activity. Southern Pacific has asserted claims in the Civil Action
against the Hookston Group, the County, and the Redevelopment
Agency. Third-Party Defendants and Southern Pacific have also
asserted claims against each other in the Civil Action.
B. The Hookston Site . The Civil Action involves a dispute
over allegations of contamination of the soil, subsoil, su--face
water and groundwater on and emanating from an approximately 8-acre
site located at the intersection of Hookston Road and Bancroft Road
in Pleasant Hill, California (the "Hookston Site" ) , described as
follows :
"All of the land described in the deed dated August 24 ,
1890 from M.E. Hook to Southern Pacific Railroad Company
recorded June 24, 1891 in Deed Book 60, Page 168, Records
of Contra Costa, County, containing an area of 8 . 193
acres, more or less"
248.0546\agreemnt.3 2 J'TS&B DRAFT: 4/01/97
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and ofLfsite contamination resulting therefrom and originating
thereon .
C. Reso?ution of the Cavil Action. The Hookston Group, the
County, the Redevelopment agency, Third-Party De-fendants, and
Southern Pacific desire to Settle and resolve the Settiors' claims
against Southern Pacific and Southern Pacific' s claims acainst
Settlors in the Civil Action pursuant to the terms of this
Setz:lement -Agreement . t iS anticipatec. that Sa.mue? Young, Sheila
3ru.toco and Soul-heYn Pacific will execute a Separate agreement
pursuant to which their claims against each other in the Civil
Action will be dismissed with prejudice .
D . The ter: "South-ern P-acific" -i 'his u_greement: shall
inc!ude any evencua.l successor, inc- ----g win-Mout limi taticn, Union
ac=__C Ra.i_.'.oaC_ Ccmnan-,/ C'Un_on Pac: f-i-, ? .
AGREEMENTS, REPRESENTATION AND OBLIGATIONS CF ''_'f ti L_RTIES
i . Sco ce of the Remedi a.tion. This Agreement is intended to
orov_de for allocation of and `or costs cf
remediation of the -Hookston Site incurred after the ef.iecvive date
of this Agreement for the scope of remediation subject to this
Acreeme.nt .
a . The contamination subject to remediation by the
Hookston Cw-ners and Southern Pacific in this .Agreement ( "Scope of
Remediation" ) shall include remediation of trichloroethylene
("TCE" ) and perchlorcethylene ( "PCE") , any derivatives of TCE or
PCE, and any other chemicals. identified in any of the technical
reports concerning the Hookston Site that were prepared for the
248.0546\agree.mnt.3 3 IDRA.?T: 5/23/99
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Hookston Group or the County that are listed in Exhibit C, to the
extent such chemicals existed on or in the soil, subsoil,
groundwater or surface water at or emanating from or originating on
the Hookston Site as of June 1, 1989, but shall not include
contamination attributable to the adjoining property at 220
Hookston Road, Pleasant Hill, California (the "Adjoining
Property") , Haber oil Products, Inc. or Haber Oil Products, Inc . ' s
operations or property at the Adjoining Property. The burden of
establishing that contamination is outside the Scope of Remediation
shall be Southern Pacific' s .
b. Standard of Remediation All chemicals included
withi n the Scope of Remediation shall be jointly r emediated by
Southern Pacific, the Hookston Group, and the County to meet the
final regulatory standards required by State and Federal law, as
determined by the lead agency overseeing the remediation of the
Site on behalf of the State, with regard to both soil and
groundwater on and off the Hookston Site for light industrial use
including transportation, utility, and pedestrian corridor not
inconsistent with light industrial use.
Southern Pacific and the Hookston Owners shall cooperate
to jointly seek regulatory approval of the least stringent level of
remediation permissible and the most cost effective method of
achieving these levels . Subject to the parties' obligation to
cooperate as set forth in Section 9 below, nothing in this Section
or elsewhere in the Agreement .shall limit, preclude or in any way
affect the right of any party to this Agreement to challenge or
248.0546\agreemnt.3 4 JT5&B DRAFT: 4/01/97
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object to the proposed regulatory standards, orders or rulings of
any agency concerning any contaminant subject to this Agreement .
If required by the lead agency, Southern Pacific, the Hookston
Group, and the County shall diligently continue monitoring the
Hookston Site and offsite wells and reporting the results to the
lead agency until such time as Southern Pacific, the Hookston
Group, and the County obtain a letter or other certification from
the lead agency which states that no further monitoring or
reporting is required with respect to both onsite and of=site
wells .
C. Southern Pacific shall not be responsible for costs
of remediation and investigation attributable to-any past , present
or future contamination of the soil, subsoil, groundwater or
surface water at the Hookston Site caused bv, emanating from, or
resulting from the property at 220 Hookston Road, Pleasant Ei11,
California, Haber: Oil Products, Inc. or Haber Oil Products, Inc ..' s
operations or presence on the Adjoining Property ( "Haber
Contamination" ) . Southern Pacific shall not be responsible for
remediation and investigation of any contamination of the Hookston
Site which contamination occurs after Jure 1, 1989 ( "Subsequent
Contamination" ) . Southern Pacific shall have the burden of
establishing that contamination is Haber Contamination. or
Subsequent Contamination. As between Southern Pacific and
Settlors, Settlors shall be responsible for costs of remediation
and investigation of Haber Contamination and Subsequent
Contamination. In the event that a regulatory agency seeks to hold
248.0546\agreemnt.3 5 JTS&B DRAFT: 4/01/97
....... ..........1.11.1 ...........................................................................................................
. .. ................................. . ......
Southern Pacific liable for all or any part of the remediation or
investigation of the Haber Contamination or the Subsequent
Contamination, the Settlors shall indemnify Southern Pacific for
the costs of such remediation and investigation.
d. The Hookston Owners and Southern Pacific agree to
commence work on the effective date of this Settlement Agreement as
provided in Section 23 (1) below, and to continue work in a regular,
diligent manner until it is completed as set forth in Section_ 1 (b)
above.
2 . Additional Site-Invest-4 cation. The Hookston Grouo and
the County previously have conducted site investigations related to
the 'r_'ookston Site and shall promptly make all data, test results ,
analyses and reports in their possession or under their control
=elated to any site investigation of the Hookston Site or any
adjoining property not previously provided (if any) available to
Southern Pacific prior to the effective date of this Agreement .
All parties to this Agreement represent and warrant that t'-ev
have made all data, test results, analyses, and reports prepared by
independent consultants, currently or previously in their
possession or under their control, related to any 'environmental
site investigation of the Hookston Site or any ' adjoining or
neighboring properties, available to all other parties prior to the
effective date of this Agreement . This representation and warranty
does not encompass any internal analyses or reports prepared by the
Contra Costa County Health Department in its capacity as a
regulatory agency.
248.0546\agreemnt.3 6 JTS&B DRAFT: 4/01./97
The Hookston Owners and Southern Pacific shall jointly
determine the extent of additional site investigation for the Scope
of Remediation. Any additional site investigation costs incurred
for the Scope of Remediation after the effective date of this
Agreement shall be shared equally between Southern Pacific and the
Hookston Owners, except that Southern Pacific shall be solely
responsible for payment of the first $75, 000 . 00 of such additional
investigation costs . To the extent there are additional site
investigation costs attributable to contamination outside the Scope
of Remediation, any such costs shall be borne by ,the ?lockstor_
Owners and not by Southern Pacific .
3 . Remediation Costs . The term "Remediation Casts" as used
in this Agreement shall mean costs and expenses incurred jointly by
or on behalf of both. the Hookston Owners and Southern Pacific after
the effective date of this Agreement for the remediation of the
F?ookston Site within the Scone of the Remediation. Remediation
Costs shall include : (a) all costs and expenses due the
independent contractors, subcontractors, consultants or experts for
work, services, materials, or other expenses within the Scope of
Remediation; (b) all amounts due to the Central Contra Costa
Sanitary District (the "District" ) for fees, rates, penalties,
fines, charges, permits, testing, sampling, site investigation, or
costs of compliance with the Settlement Agreement with the District
or other costs or expenses related to the Scope of Remediation; (c)
all other costs and expenses of permits or fees related to the
Scope of Remediation by any other governmental entity other than
248.0546\agreemnt.3 7 JTS&B DRAFT: 4/01/97
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the District or the County; (d) charges by property owners off the
Hookston Site and other reasonable expenses incurred jointly on
behalf of the parties to this Agreement for access to such offsite
property for implementation of a remediation system, (e) all costs
and expenses of purchase, installation, operation and servicing of
equipment or supplies for a horizontal well system or such
alternative means of remediation as may be used within the Scope of
Remediation; (f) all costs of monitoring, oversight reporting and
sampling by or required by any regulatory entity exercising
jurisdiction over the Hookston_ Site within the Scope of
Remediation; and (g) al? other costs reasonably related to
comp'ying with the requirements of any regulatory entity exerts sa rIg
jurisdiction over the Hookston Site for the Scope of Remediation.
The costs attributable to additional site investigations are
subject to and governed by Section 2 of this Agreement .. The cast;
of designated representatives selected by either the Hookston_
Owners or Southern Pacific under Section 8 of this Agreement are
not Remediation Costs and instead shall be borne by the party
designating the representative . To the extent that there are costs
related to remediation of the Hookston Site outside ' the. Scope of
Remediation, such costs are not included within the definition of
"Remediation Costs . " If a dispute arisesas to whether a cost or
expense is a Remediation Cost, the issue may be submitted to
JAMS/Endspute by either the Hookston Owners or Southern Pacific
pursuant to Section 20 of the Agreement.
4 . Allocation of Costs Southern Pacific and the Hookston
248.0546\agreemnt.3 8 JTS&.s DRAFT: 4/01/97
Owners shall bear the Remediation Costs equally, that is 50fl by
Southern Pacific and 5011 by the Hookston Owners . Each of the
Hookston Owners shall be jointly and severally liable for payment
of the Hookston Owners' 50a share of Remediation Costs .
a. Escrow Account . Prior to the effective date of this
Agreement, the Hookston Owners and Southern Pacific shall establish
an interest--bearing escrow account for financial contributions
under this Section (the "Escrow Account" ) . The terms of the escrow
agreement and the escrow agent to administer the Escrow Account
shall be jointly determined by the Hookston Owners and Scut.'�ern
Pacific .
All fees o the Escrow Agent in connection with
establishing and administering the Escrow Account shall be borne
and paid for equally by Southern Pacific and the Hookston Owners .
All interest that accrues in the Escrow Account shall
be shared equally between. the Hookston Owners and Southern Pacific,
with 5001 to the Hookston Owners and 50% to Southern Pacific . The
Hookston owners shall divide earned interest amongst themselves
according to their pro rata contributions to the escrow account
b. Initial Financial Contribution_. Within five {5 }
days following the Court"s approval of this Settlement Agreement ,
the Hookston Owners and Southern Pacific shall each make payment in
the amount of two hundred fifty thousand dollars ($250 , 000 . 00) to
the: Escrow Account .
C. Subseauent Financial Contributions'. Unless
otherwise agreed by both the Hookston Owners and Southern Pacific,
248.0546\agreemnt.3 9 .TTS&B DRAFT: 4/01/97
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the Hookston Owners and Southern Pacific shall each deposit
additional payments of two hundred and fifty thousand dollars
($250, 000 . 00) each time the amounts remaining in the Escrow Account
will fall below one hundred thousand dollars ($100, 000 . 00) .
d. Distribution of Remaining. Funds . Upon the earlier
of a written determination by the lead agency which states that no
further action or monitoring is required, or the mutual agreement
of Southern Pacific and Hookston Owners, any funds remaining in the
Escrow Account after payment of all amounts owed to contractors,
subcontractors, the Escrow Agent, and any other accounts payable,
shah be distributed 50a to Southern Pacific and 50a to the
Hookston Owners and the Escrow Account shall be closed.
5". Pavment of Remediation Costs . The funds in the Escrow
Account are intended for payment of Remediation. Costs . Tf' the
Hookston Owners` Representative and Southern Pacific` s
Representative agree that invoiced amounts are due and payable and
that they are Remediation Costs, they shall submit a writte::
certification to the escrow agent for the Escrow Account
authorizing payment of the invoiced amounts . Copies of all
certifications and documentation submitted by the Hookston Owners`
Representative and Southern Pacific' s. Representative shall
simultaneously be provided to the Hookston Owners and Southern
Pacific . Because there may be costs and expenses related to
remediation of the Hookston Site that are not Remediation Costs,
disputes may arise concerning whether invoiced amounts should be
paid from the Escrow Account. Any such dispute may be submitted by
248.0546\agreemnt.3 10 JTS&B DRAFT: 4/01/97
11
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the Hookston Owners or Southern Pacific to . JAMS/Endispute for
prompt resolution pursuant to Section 20 of this Agreement . If
Hookston Owners' Representative and Southern Pacific' s
Representative agree that invoiced amounts are due and payable, but
cannot reach agreement within thirty days of receipt of an invoice
concerning whether or to what extent the invoiced amounts are
Remediation Costs, such disputed amounts may be paid from the
Escrow Account to avoid a default with the invoicing person or
entity and the issue may be submitted to JAMS/Endispute for
determination whether all or some portion of such invoiced a-mounts
are Remediation Costs pursuant to Section 20 of this Agreement . If
JAMS/Endispute determines that all or some of the invoiced amounts
are not Remediation Costs, the party or parties responsible for
payment of such expenses shall, within five (5) days of th.e
determination of JAMS/Endispute, reimburse the Escrow Account for
such paid amounts that are not Remediation Costs to the extent such
amounts have been paid from the Escrow Account .
6 . Contractor and Contract .
a. Selection of read Contractor. The Hookston Owners'
Representative and Southern Pacific' s Representative shall jointly
choose a lead remediation contractor to perform the remediation of
the Hookston Site . If the Hookston owners' Representative and
Southern Pacific' s Representative cannot reach agreement on
selection of a contractor for remediation of the Hookston Site,
either the Hookston Owners or Southern Pacific may submit the issue
to JAMS/Endispute for resolution pursuant to Section. 20 of this
248.0546\agreemnt.3 1 1 JTS&B DRAFT: 4/02/97
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_.. ......... ......... ......... ......... ......................................._..........................._..........................................._.
Agreement . If the issue of who the contractor should be is
submitted to JAMS/Endispute, the Hookston Owners and Southern
Pacific shall each submit their list of proposed lead contractors
and JP.MS/Endispute shall choose the contractor from the submitted
list of contractors .
b. Neaotiations and Execution of the Remediation
Contract . The Hookston Owners' Representative and Southern
Pacific' s Representative shall negotiate the terms of the contract
wth the lead remediation contractor. IF Southern Pacific' s
Representative and the Hookston Owners' Representative cannot reach
agreement with each other on material contract terms, either the
Hookston Owners or Southern Pacific may submit the disputed issues
to JAMS/Endispute for resolution pursuant to Section 20 of this
�areement The contract with the lead remeci at_on contractor shah
be executed by each of the Hookston Owners and by Southern Paci-fic .
The lead remediation contractor selected shall be entitled to
choose subcontractors, consultants, and experts to perform work
under its agreement with the Hookston Owners and Southern Pacific,
subject to consultation with Hookston . Owners' Representative and
Southern Pacific' s Representative,
7 . Suoe rvision of Remediation Contract . Southern Pacific' s
Representative and the Hookston Owners' Representative shall
supervise the lead remediation contractor for the Hookston Site and
the performance of the remediation contract . The Hookston Owners
and Southern Pacific shall each be entitled to all data, reports
and other documents generated in connection with the Scope of the
248.0546\agreemnt.3 12 J'TS&B DRAFT: 4/01/97
. . ...............................................................................................................................................................
_....._....................................................................................................................._......................_.................... .__....__...........
Remediation under this Agreement . If there is a dispute between
Southern Pacific' s Representative and the Hookston Owners' -
Representative regarding any material issue arising from or related
to supervision of the lead remediation contractor or the
remediation contract, such dispute shall be resolved by
JAMS/Erdispute pursuant to, Section 20 of this Agreement .
8 . Designation of Renresentatives . The Hookston Owners
jointly and Southern Pacific shall each designate in writing to the
other one representative to supervise the remediation contractor
and the performance of. the remediation contract and for discussion
and resolution of issues related to the Agreement . If there is a
di spuze between the representatives 're ard4 ng any material issue
arising ---cm or related to the remediation contract , such dispute
shall be resolved by JPIMS/Endispute pursuant to Section 20 of this
Agreement on reasonable notice to JAMS/Endi spute and to the
opposing party to submi t any written materials it deems appropriate
within four (4) days after receipt of such notice .
9 . Remediation Plan. The Hookston Owners and Southern
Pacific shall negotiate in good faith and provide all cooperation
reasonably necessary to reach agreement as to the remediation plan
to be used and to obtain the approval of a plan for remediation by
each regulatory authority that exercises jurisdiction over the
remediation of the contamination subject to this Agreement to the
extent such approval is necessary. Although a horizontal well
remediation system is currently under consideration, the parties to
this Agreement recognize that such an approach ; may not be
249.0546\agreemnt.3 13 JTS&B DRAFT: 4/01/97
11.1.11,....I...''I..............................................................................................................................................................................
.......................................................................................................................
appropriate, may not be approved by the regulatory authorities, or
possibly may not be successful in remediating the Hookston Site 7
and, as a result, other approaches to remediation may be necessary
or appropriate . If the Hookston Owners and Southern Pacific cannot
reach agreement on the remediation plan, any of those parties may
submit the issue for resolution by JAMS/Endispute pursuant to
Section 20 of this Agreement .
10 . No Interference . The Hookston Owners and Southern
Pacific agree that the remediation contract shall provide that the
remediation contractor will not unreasonably interfere with the
normal operation o-j'-' the Hookston Site or its development ; shall
promptly remove all debris attributable to investigation or
remediation from the Site; shall avoid blocking access to the Site ;
shall keen, maintain and restore the Site in and to at least as
good cond-it-lon as it is when work commences; shall orcmptly on a
cost effective basis (taking into account the needs and desires c-F
the Hookston Site tenants and the Hookston Owners. ) remove or
cause the removal from the Site of any and all substances generated
by any monitoring, testing, and remediation otherwise required by
law to be removed from the Hookston Site and shall manifest and
dispose of such substances as required by all applicable federal
and state laws and regulations . The Hookston Owners and Southern
Pacific shall be resnonsible for the legal disposal of all
substances generated by their activities and all waste materials,
including, but not limited to, any and all soil cuttings .
11. Comnliance; -Safety. The Hookston owners and Southern
248.05461agreemnt.3 14 JTS&B DRAFT: 4/01/37
Pacific agree that the remediation contractor shall be required to
adhere to and comply with all applicable governmental statutes,
ordinances, orders, directives, guidelines, rules and regulations
when occupying the Site, and when conducting testing, sampling,
remediation, and monitoring activities related to the remediation
both on the Site and off the Site .
12 . Liability of the Members of the Hookston Owners and the
Third Party Defendants . Each member or the Hookston Owners shall
be jointly and severally liable to Southern Pacific for any
obligation of the Hookston Owners to Southern Pacific under this
Settlement Agreement .
13 . Final Accountincr. The Hookston Owners and Southern
Pacific shall jointly provide for an accounting of the Remedi aticr_
Costs on an annual basis for each calendar year, to be completed by
January 31 of each year for which there are Remedi'>ation Costs .
Upon the earlier of 90 days after final approval of the remediation
of the Hookston Site by the lead regulatory authority exercising
jurisdiction over the remediation of the Hookston Site, the receipt
of a letter from such agency stating that no further action is
required or the mutual agreement of the Hookston Owners and
Southern Pacific, the Hookston Owners and Southern Pacific shall
jointly prepare a final accounting of the Remediation. Costs to
ensure that each party has contributed the appropriate amount . If
the Hookston Owners and Southern Pacific cannot reach agreement on
the annual or the final accounting, the matter may be submitted to
JAMSJEndispute for resolution pursuant to Section ' 20 of this
248.0546\agreemnt.3 15 JTS&B DRAFT: 4/01/97
....... ...._......_. ......... ......... ......... ......... ......... ......... ......... ......._.
. .......................................................................................................................................................
. .................................................................
Agreement .
14 . Sale of the Hookston Site . The Hookston Owners represent
that they currently own approximately 99n of the Hookston Site and
that the balance of the Hookston Site is, to the best of their
knowledge, currently owned by Marilyn Rice Price . No 'Settlor shall
sell, convey, assign or transfer (other than by devise or descent)
any portion of their right, title or interest in the Hookston Site
unless and until (a) it, he or she (the "Conveying Party" ) obtains
the written agreement of the party acquiring such ridht, title or
interest in the Hookston_ Site (the "Acquiring Party" ) to provide
reasonable access to the Hookston Site and to cooperate with the
contractor or contractors and any subcontractor or consultants
retain6d pursuant to this Agreement; (b) the Conveying Party
prov'des full and comn?ete written disclosure to the Acqu'r inc
Partv of the contamination of soil, subsoiI, groundwater or surfaca
water at the Hookston Site; (c) the Conveying Party provides a
signed copy of this Agreement to the Acquiring Party; and (d) the
Acquiring Party provides written consent to be bound as a successor
to the Conveying Party by the release provisions of Section 17 of
this Agreement . The Conveying Party shall provide written notice
to Southern Pacific and to each of the Hookston Owners within
thirty days after the date of conveyance of any sale, conveyance,
assignment or transfer of his, her or its right, title or interest
in the Hookston Site. Upon request, the Conveying Party shall.
provide appropriate supporting written documentation to Southern
Pacific reflecting satisfaction of the obligations under this
248.0546\agreemnt.3 16 JTS&B DRAFT: 4/01/97
Section. The Conveying Party shall remain liable for all of its,
his or her obligations under this Settlement Agreement _
notwithstanding the sale, conveyance, transfer or ',assignment of
some or all of its, his or her right, title or interest on the.
Hookston Site, The failure of any Conveying Party to comply with
its, his or her obligations under this Section of the Agreement
shall constitute a material breach of this Agreement by the
Conveying Party.
15 . Access to Hookston Site . The Hookston Owners, their
respective successors and assigns, and any Acquiring Party shall
permit and provide for reasonable access to the Hookston Site by
all contractors and subcontractors and consultants retained by the
Hookston Owners and Southern Pacific in connection with the process
of remedi atry on. of the Hookston Site . Southern Pacl:f i c and Southern
Pacific' s Representative and any consultant retained by Southern
Pacific also shall be permitted reasonable access to the Hookston
Site for matters related to remediation of the Hookston Site .
1.6 . Claims of 'Third Parties . The parties to this Agreement
expressly reserve all claims, causes of action or rights, if any,
they may have against each other in connection with the claims or
causes of action of any person or entity not a party to or bound by
the Civil Action, for contamination, if any, occurring off the
Hookston Site emanating from the Hookston Site .
17 . Mutual Release . Except to the extent expressly reserved
or set forth in this Settlement Agreement, the Hookston Group, the
County, the Redevelopment Agency, and Third Party Defendants for,
248.0545\agreemnt.3 17 JTS&s DRAFT: 4/01/97
.__...___._........................................................................................................................................................................................... ..
.._ .......... ..__._.... ......... ...._... ......... ......... ......... ......... ......... ......... .......... ........ .........
themselves, their successors, assigns, heirs, S&DLeasing, any
Acquiring Party and all persons or entities claiming by, through or
under any of them, hereby release, acquit and forever discharge
Southern Pacific, and each of its predecessors, successors, and
assigns (including without limitation, Union Pacific) , and each of
its or their respective parents, subsidiaries or affiliates, and
each of their respective current and farmer officers, directors ,
employees, agents and attorneys, and Southern Pacific, for itself" ,
its successors and assigns and all persons or entities claiming by,
thrcugh or under them, hereby releases the Hookston Croup, the
County, the Redevelopment Agency and Third Party Defendants and
each of their current and former respective employees, trustees ,
agents, attorneys and each of their respective successors, assigns
or heirs, (excluding Sam young and Sheila Brutoco) from any and all
obligations, claims, debts, demands, liabilities or causes of
action of any kind based upon, arising out of or in any manner
related to (1) the matters alleged in the Civil Action, or (2)
Contamination of soil or groundwater by chemicals identified in
reports prepared for the Hookston Croup or the County by Engeo,
Harding Lawson, or Treadwell & ' Rollo, Inc . pertaining to the
Hookston Site, prior to the effective date of this Agreement or (3 )
remediation and investigation costs and expenses incurred prior to
the effective date of this Agreement . Nothing in this Section
shall be construed to relieve any party of any obligation,
liability or right created pursuant to this Agreement, or for any
claim, cause of action, right or liability reserved under Section
248 .0546\agreemnt.3 18 JE'S&B DRAFT: 4/01/97
_. ._... ......... ......... ......... ......... ......... ......... ......... ......... ......... .... ..._.
... . ..........._............. ...._.._. ......... ......... ......... ......... ......... ......... ......... ......... ......... .........
16 of this Agreement . The Hookston Group, the County, the
Redevelopment Agency, Third Party Defendants and Southern Pacific
covenant and agree to hold each other harmless from and against any
and all actions, causes of action, claims or liabilities, including
without limitation, attorneys' fees and expenses, sustained by
reason of their breach of this Section of the Agreement . The
provisions of this Mutual Release are effective upon the effective
date of this Agreement .
18 . Dismissal of Claims With Prejudice . The Hookston Group,
the County, and Third Party Defendants shall dismiss with prejudice
all claims asserted against Southern Pacific in the Civil Action_
and Southern Pacific shall dismiss with prejudice all claims
asserted against the Hookston Group, the County, the Redevelopment
Agency and Third Party Defendants in the Civil Action, each party
to bear his, her, or its own costs and attorneys` fees. Promptly
after the effective date of this Agreement, the parties shall file
with the Court a Joint Stipulation of Dismissal in the form of
Exhibit A.
19 . Good Faith Settlement Bar. This Agreement shah be
subject to, and conditioned upori, the Court entering an order
approving this Agreement as a good faith settlement of all claims
asserted in the Civil Action by the parties to this Agreement
against each other, and barring all claims against Southern Pacific
by any party to the Civil Action. The parties agree to execute any
documents reasonably necessary to effectuate the terms of this
Agreement, including without limitation, any documents reasonably
248.0546\agreemnt.3 19 JTS&B DRAFT. 4/01/97
necessary to obtain court approval of the Agreement as a good faith
settlement . The proposed form of order approving this Agreement as
good faith settlement is attached to this Agreement as Exhibit D.
20 . Arbitration. Any dispute arising under or in connection
with this Agreement shall be determined in binding arbitration
conducted by JAMS/Endispute. The parties to this Agreement agree
to submit to binding arbitration before JAMS/Endispute all
controversies, claims and matters in dispute arising under or
relating in any way to this Agreement, including without
limitation, the allocation of costs and expenses under this
Agreement, disputes over the remediation process, the
interpretation, breach, enforcement or enforceability of this
Agreement, invoices submitted under this Agreement, all questions
relating to any representations or negotiations leading to the
execution of the Agreement, and all questions as to the right to
arbitrate any issue . The party desiring arbitration shall so
notify the other parties, identify in reasonable detail the matters
to be arbitrated and the relief sought . The arbitration shall be
conducted by a single arbitrator at JAMS/End ispute . The arbitrator
shall determine the rules of procedure for conducting the
arbitration. The arbitrator shall conduct a hearing no later than
10 days after submission of the matter to arbitration and a
decision shall be rendered by the arbitrator within two days of the
hearing. This submission and agreement to arbitrate shall be
governed by and specifically enforceable in accordance with the
United States Arbitration Act . Arbitration may proceed in the
248,0546\agreemnt.3 20 J'T5&B DRAFT: 4/01/47
. .... .........................................................................................................................................................................................................................
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absence of any party if written notice of the proceedings has been
given to such party. The parties agree to abide by all awards
rendered in such proceedings . Such awards shall be final and
binding on all parties to this Agreement who received written
notice of the arbitration prior to the hearing, either directly or
to their designated representative. All awards may be filed with
any court having jurisdiction over any party against whom such
award is rendered, as a basis of judgment and of the issuance of
execution. The arbitrator' s fees and other casts of the
arbi oration shall be borne by the party or parties against whom the
award is rendered.
21 . No Admission of amiability. By agreeing to the terms of
this Agreement, the parties do not admit any liability for any
contamination at or attributable to the Hookston Site. In fact,
the parties to this Agreement specifically deny liability. The
parties are entering into this Agreement as a compromijse solely for
the purpose of resolving their dispute and their claims in the
Civil Action. This Agreement shall not be admissible for the
purposes of establishing liability of any of the parties to the
Agreement to any person or entity. who is not a signatory to this
Agreement .
22 . Assicnment . Southern Pacific agrees to execute
concurrently herewith an Assignment of Rights, if any, in the form
attached as Exhibit B . The Hookston Owners, jointly and severally,
agree to indemnify Southern Pacific and hold Southern Pacific
harmless from any and all claims and causes of action asserted by
248 .0546\agreemnt.3 21 JT5&B DRAFT. 4/01/97