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Home My WebLink AboutContracts & Agreements_110-2004Nos 03-1-3, 03-11-1 and 03-H1-1 from Alexander Communities to Richmond Amencan Homes Pre -Annexation Agreement 04-01 - On motion of Councilmember Gilbreath, seconded by Councilmembei Gil, the City Council unanimously approved Pre - Annexation agreement 04-01 for Barbara Hyman on an approximately 29,528 square foot parcel located on the southwest corner of Opal and San Bernardino Avenues in the Mentone area EIR Funding Agreement - Walton Development - On motion of Councilmember Gilbreath, seconded by Councilmember Gil, the City Council unanimously approved an Environmental Impact Report funding agreement with Walton Development, LLC for the development of a single family planed residential development authorized the Mayor and City Clerk to execute the agreement on behalf of the City Subdivision Improvement Agreement - Final Approval - Tract No. 16360 - On motion of Councilmember Gilbreath, seconded by Councilmember Gil, the City Council unanimously approved a subdivision improvement agreement for Tract No 16360 for the subdivision of 8 86 acres into 76 residential lots and a number of common area lots located on the southeast corner of Orange Avenue and Iowa Street in Specific Plan No 57 and authorized the Mayor and City Clerk to execute the agreement on behalf of the City On motion of Councilmember Gilbreath, seconded by Councilmember Gil, the City Council unanimously granted final approval for Tract No 16360 as submitted by the applicant, Richmond American Homes Settlement Agi eement - Gibson Group Trust - On motion of Councilmember Gilbreath, seconded by Councilmember Gil, the City Council unanimously acknowledged a settlement and release agreement with Gibson Group Trust relating to environmental conditions in soil and/or groundwater at the former Gibson Environmental, Inc and authorized the Mayor and City Clerk to execute the agreement on behalf of the City. The City Council authorized settlement of this matter in closed session and this release i effects the terms and conditions fol said settlement. Resolution No 6305 - Oppose Gaming Revenue Act of 2004 - On motion of Councilmember Gilbreath, seconded by Councilmember Gil, the City Council unanimously adopted Resolution No. 6305, a resolution of the City Council of the City of Redlands in opposition of the Gaming Revenue Act of 2004 Traffic Signal UPS System - On motion of Councilmember Gilbreath, seconded by Councilmember Gil, the City Council unanimously terminated the contract for construction of the Traffic Signal UPS (Uninterrupted Power Source) July 20, 2004 Page 3 AGENDA ITEM NO ` lb COUNCIL MEETING OF 7/20/04 REQUEST FOR COUNCIL ACTION SUBJECT Settlement And Release Agreement - Gibson Group Trust Attached is a copy of a Settlement and Release Agreement with Gibson Group Trust relating to environmental conditions in soil and/or groundwater at the former Gibson Environmental, Inc The City Council authorized settlement of this claim and this agreement reflects the Council's terms and conditions for settlement In accordance with the requirements of the Brown Act, the agreement is on your agenda to notify the public of the Council's action No additional action is necessary by the City Council Prepared by Linda Emmerson Executive Assistant cmolrcalgibsonerouptrttst ib Recommended by 1 • Daniel J E; Hugh City Attorney CONFIDENTIAL SETTLEMENT COMMUNICATION FRE 408, CAL Ev CODE §1152 Exhibit 4 GIBSON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT, RELEASE AND INDEMNITY This Gibson Bakersfield De Mtnimis Settlement Agreement ("Agreement") is between the Gibson Group Trust, the Indemnitors and the undersigned Settling PRPs, as more fully defined below (collectively "Parties") Recitals and Definitions A The California Department of Toxic Substances Control ("DTSC") issued an Immment and Substantial Endangerment Determination and Order and Remedial Action Order, Docket No I & SE 99/00-002 on November 8, 1999 (this Order and its subsequent amendments shall be referred to collectively as the "DTSC Order"), directing vanous persons to perform response actions (the "Work") relating to environmental conditions in soil and/or groundwater (the "Contamination") at the former Gibson Environmental, Inc facility located at 2401 Gibson Street m Bakersfield, California (the "Site"), B Several persons named in the DTSC Order, together with several persons not named in the DTSC Order but alleged to have sent waste to the Site (collectively, the "Group" or the "Cooperating Entities"), have been performing the Work pursuant to various agreements among themselves, C The agreement currently in effect, which superceded all previous agreements, is the Gibson Group Stage II Site Participation Agreement (this Agreement and any subsequent amendments shall be referred to collectively as the "Stage II Agreement"), D In addition to the Stage II Agreement, the Cooperating Entities, other than the California Department of Transportation ("CaITrans"), are also signatones to the Gibson Group Declaration and Agreement of Trust ("Trust Agreement"), which created the Gibson Group Trust, E. The Settling PRPs are persons that the Gibson Group Trust alleges also sent waste to the Site, giving rise to contnbution claims pursuant to state and federal law for reimbursement of the Settling PRPs' share of costs the Cooperating Entities and/or the Gibson Group Trust have expended to perform the Work (the "Contnbution Claims"), and who wish to enter this Agreement in order to resolve such Contribution Claims and avoid the expense of litigation or otherwise contributing to the performance of the Work; F Pursuant to the Stage II Agreement, the Cooperating Entities have assigned all Contnbution Claims they may have against the Settling PRPs to the Gibson Group Trust, which enters this Agreement pursuant to the authonty provided to it by the Cooperating Entities through the Stage II Agreement, the Trust Agreement and California law, Therefore, the Parties mutually agree as follows GERSON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT Page 1 of 6 May 5, 2004 330555_1 CONFIDENTIAL SETTLEMENT COMMUNICATION FRE 408, CAL EN . CODE §1152 Exhibit 4 Agreement 1 Counterpart Execution Tlus Agreement may be executed in counterparts, with the same effect as if all signatures on such counterparts appeared on one document, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument Facsimiles of signatures shall be considered onginals Signature pages shall be returned to William J Hengemihle LECG, LLC 1255 Drummers Lane, Suite 320 Wayne, PA 19087 Facsimile 610-254-1188 With a copy to Richard C Coffin Barg Coffin Lewis & Trapp, LLP One Market, Steuart Tower, Suite 2700 San Francisco, CA 94105-1475 Facsimile 415-228-5450 This Agreement shall be binding on each Settling PRP whose signature page and Proof of Payment (as defined below) — or, in the case of a Settling PRP that is a public entity, written confirmation that a recommendation to sign the signature page has been placed on the agenda for approval at the next regularly scheduled meeting of the entity's governing body ("Public Entity Confirmation") — have been received by LECG no later than June 28, 2004 Signature pages and Public Entity Confirmations received by LECG after June 28, 2004 shall not be effective without the express written agreement of the Management Committee for the Group as defined in the Stage II Agreement 2 Payments Each Settling PRP shall, no later than June 28, 2004, pay that Party's Payment Amount (as shown on Exhibit A hereto) to the Gibson Group Trust Payments by check shall be made payable to The Gibson Group Trust (Taxpayer I D No 90-6023860) and mailed to Kenneth C Coelho RBZ Business Management Systems, LLC 11755 Wilshire Boulevard, Suite 900 Los Angeles, California 90025-1586 Wire transfer arrangements may be made by contacting Mr Coelho (telephone (310) 478-4148, e-mail kcoelho@rbz com) Regardless of how payment is made, Settling PRPs shall provide contemporaneous evidence of such payment via facsimile to LECG at the number indicated in GIBSON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT Page 2 of 6 May 5, 2004 330555_1 CONFIDENTIAL SETTLEMENT COMMUNICATION FRE 408, CAL EV CODE §1152 Exhibit 4 paragraph 1 above ("Proof of Payment") The Gibson Group Trust shall hold each Settling PRP's Payment Amount in a segregated account — and the money shall not be spent on the Work or anything else — until fully -executed copies of the Gibson Group Trust's and Indemnitors' signature pages to this Agreement are returned to the Settling PRP 3. Release of Settling PRPs The Gibson Group Trust releases (and thereby each Cooperating Entity releases) each Settling PRP from any and all claims ansing out of the waste volume listed for that Settling PRP on Exhibit A hereto for (i) costs incurred in performing the Work required by DTSC at the Site, (n) costs incurred in performing any other actions necessary to clean up the Contamination to the satisfaction of any governmental environmental regulators who assert junsdiction over the Site or (iii) taxes, fees or oversight costs assessed as a consequence of performing any of the foregoing actions (the "Released Claims") The Released Claims do not include (a) claims by any natural resource trustee or other person for natural resource damages, (b) claims for personal injury or property damage, (c) claims of cnminal liability or (d) claims against a Settling PRP ansmg out of any waste volume exceeding the amount fisted for that Settling PRP on Exhibit A hereto The Gibson Group Trust covenants not to sue any Settling PRP for any of the Released Claims 4. Settling PRPs Release of the Gibson Group Trust and Cooperating Entities Each Settling PRP hereby releases the Gibson Group Trust and each of the Cooperating Entities from any and all claims that arise from the waste volume listed on Exhibit A and are within the scope of the Released Claims Each Settling PRP covenants not to sue the Gibson Group Trust and/or any of the Cooperating Entities for any claim arising from the waste volume listed on Exhibit A and within the scope of the Released Claims Nothing in this paragraph is Intended to affect any Settling PRP's claim that is outside the scope of the Released Claims 5. Indemnity Atlantic Richfield Company, ChevronTexaco, Dart Container Corporation; Delta Tech Service, Inc , Disneyland, The Fresno Bee, Los Angeles County Metropolitan Transportation Authonty, Northrop Grumman Space & Mission Systems Corp, Oscar E Erickson, Inc , Pacific Gas and Electric Company, Pacific Offshore Pipeline Co , Peninsula Comdor Joint Powers Board, Penske Truck Leasing Co , L.P., Pilot Chemical Co , Procter & Gamble Haircare LLC, Ralphs Grocery Company, Rexam, Inc , SBC/Pacific Bell, Sears, Roebuck and Co , Southern California Edison Company, Southern California Gas Company, Sunquest Properties, Inc , Tidelands Oil Production Company, Ultramar, Inc and Union Oil Company of California (collectively "Indemnitors") agree to indemnify, defend and hold harmless each Settling PRP from and against any and all claims that arise from the waste volume listed on Exhibit A and that are within the scope of the Released Claims The indemnity provided by this paragraph shall include, without limitation, claims asserted by any Cooperating Entity and/or any federal, state or local government agency within the scope of the Released Claims The obligations of this paragraph are expressly limited to those Cooperating Entities that have signed as Indemnitors below, and shall not be interpreted as imposmg any obligations on Cooperating Entities who GIBSON BAKERSFIELD DE MINIMS PRP SETTLEMENT AGREEMENT Page 3 of 6 May 5, 2004 330555_1 CONFIDENTIAL SETTLEMENT COMMU\!CATION FRE 408, CAL EV CODE §1I52 Exhibit 4 have not signed as Indemnitors or the Gibson Group Trust Settling Parties understand and agree that the obligations under this paragraph will be shared by the Indemnntors pro rata based on the respective volume of each Indemnitor's waste sent to the Site , 6 Counsel No Party, or representative or counsel for any Party with respect to such other Party's entenng into this Agrement,Iand each Partas counsel yy rany others that it has sought and obtained any appropnate independent legal advice prior to entenng into this Agreement. 7. Authority Each individual executing this Agreement on behalf of a Party warrants that she or he is duly authorized to do so and that such execution is binding upon the Party 8. Governing Law This Agreement shall be interpreted according to California law 9. Successors and Assigns. This Agreement is binding on and shall inure to the benefit of the Parties' successors and assigns IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates indicated below Pnnt Name of Individual Signing on Entit 's Behalf Susan Peppier Print Title of Individual Signing on Entit 's Behalf Mayor 35 Cajon Street PO Box 3005 Redlands, CA 92373 GIBSON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT Page 4 of 6 May 5, 2004 330555_1 07/02/2004 15 58 FAX 415 228 5450 BARG COFFIN LEWIS TRAPP CONFIDENTIAL Si. vii_..4i CUMMUYiCA-iU' ME Exhibit 4 Calm( n GI oup Trust Trustee Name Signature Dare / l R6 o1Gri 0 'e�}�attok,e Brenda Mantero]d f E4? pa, j�_., 5- Dave Robersonkiinvt% 7-4 --6 014 Indemnitors Entity Name Atlantic Richfield Company Signature ;A: AU Date Print Signer's Name Print Title K1,471.44 c,rr. — u J. 10-.101E— 60A -s As 5<<r4. Delta Tech Service, Inc Disneyland The Fresno Bee 544. 4wj. ivm 41 Lus Angeles County Metropolitan Transportation Authority Northrop Grumman Space & Missum Systems Corp Oscar E Erickson, Inc. ;79 4 ikh/feet. ,5,114 4/000 feiLdecot /f& 044, Roncxtct s-6,, IcIt'tfTcuttet (if*, Littku. SOW 5-crt-i-txj Pacific Gas and Electric Company l'Adt,511.41 C bitogrork 6 L. � Age -or 1 ,,3 ese+o 914 GIBSON BAKERSFIELD DE MIN/MIS PRP SETTLEMENT AGREEMENT Page 5 of Ce.-P.aZd May s, 2004 330555_1 Ayr.. +.wV VYVV s..ruva ..vrril+l i..r.TTI AMY!' CONFIDENTIAL SETTLEMENT COMMUNICATION+FRE 408, CAL. Ev CODE §1!52 Exhibit 4 gals indemnitors Entity Name Signature Date Print Signer's Name Print Title Pacific Offshore Pipeline Co �}Q_ /� f. ' liI/i / /f, 1 ',Up_t �l4 Imo- $121( '� veC: A PAmascAver /11ciM 4./41- David J. Miller AnitrveY Inc&F3 OID&PD Asda CMOIC�4/ r -660 -CZ Attorney Peninsula Corridor Joint Powers Board Penske Track Leasing Co., LP ilkiki Aiken, 8 4,1164 D` r e, Fzor, f a'e. �Grilial r Pilot Chemical i Tracy D Hester Attorney Procter & Gamble Haircare LLC % f I C'l�t1 ZeltS 44 . Ale. 0.144 Arm Am Ey Ralphs Grocery Company W2,4 M.v,� 1) Lvt..sairost. A tiw, Rexam, Inc 4111 iiir ��-,! / /17/04 John F Cermak, Jr. Attorney SBC/Pacific Bell 4 i MI VP/ Peale- (.,1-0 ilio n44 Sears, Roebuck and Coa;11-11.141,1t3 \ il•rch l C (9/04 P. ►�h Ce-4,►d .! Southern Caltfolriia Edison Company 2(,9 es ,i/ V7� Sf,5+4 + e Pier to Soc�,A � sa1,k 34. 14. p 60A01 Cow4sSZL Sr Aire e�''Co i1/4/101143er- ` 1. Southern Gas Company _—�—�� R " ► ' LAI / Sunquest PIOpert185, IIIc t* tr 6 Jason Lin Project Manage Tidelands Oil Production Company � � 1 �"/ fir, ,(� 6J a � ri4 "t 2{� � ,�t� EK. Ultramar, Inc 5/14441 S. Bowers Assistant Secre Union Oil Company of Califoia" rn C24 ` �c,4.�/ /1/4.7 x- 1hie,�c� ` �J filei4* GIBSON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT Pap 6 of 6 May ), 2004 330555_1 r ary CONFIDENTIAL SETTLEMENT COMMUNICATION FRE 408, CAL. EV. CODE §11152 Exhibit A Financial Terms of Settlement Offer Gibson Environmental Site, Bakersfield, California [al Offeree [b] Waste -In Solids (Tons) [c] Percentage Share of Solids [b] / E[b] [d] Waste -In Liquids (Gallons) [e] Percentage Share of Liquids [d] / E[d] [t] Waste Allocation ( ([e] x 47!) [si Base Payment [h] Allocation of Past Costs Less Total of Base Payments (w/o Premium) ([c] x 25%) Pat Costs 75%) x [q Allocation of Future Costs (w/ Premium) i[c] x 65%) + ([e] x $17.9MM x 2.05a/a) x I]] Total Cash -Out Payment (Settlement Amount) [g] + [h] [1] CITY OF REDLANDS 0 0.0000% 58,790 0 0767% 0 0360% $750 $3,792 $9,611 $14,153 Other De Minimis Parties 115,710 24.4518% 20,890,531 27 2549% 25 7693% Other Viable Parties (including Gibson Group Members) 357,507 75.5482% 55,699,375 72 6684% 74 1947% Total 473,217 100 000% 76,648,696 100 000% 100 000% [a] Offeree This is the name of the party to whom the settlement offer is being made Settlement offers are being made to all parties with 'Waste Allocation" shares above the EPA determined de micromis cutoff of 0 002% [b] Waste In Solids (Tons) This is the total amount of solid waste attributable to the Offeree [c] Percentage Share of Solids This is the Offeree's percentage share of all solid waste attributed to all financially viable parties above the de micromis cutoff [d] Waste In Liquids (Gallons) This is the total amount of liquid waste attributable to the Offeree [e] Percentage Share of Liquids. This is the Offeree's percentage share of all liquid waste attributed to all financially viable parties above the de micromis cutoff [f] Waste Allocation This is a cost -weighted average of the Offeree s solid and liquid waste percentage shares developed solely for the purposes of determining de minimis settlement eligibility (i.e., > 0 002%) This value is not used to calculate the Offeree's total buyout payment Buyout payments are calculated from the values reported or referenced at columns [g] through [1]. The percentage weights reflect the ratio of total (past and future) costs pertaining to solids and liquids at the Gibson Site [g] Base Payment Base Payments are assigned to all viable parties in the amount of $750 The sum of all potential Base Payments is $836,250 [h] Allocation of Past Costs (without Premium) For allocation purposes, Past Costs ($7,427,410) are reduced by the total of all Base Payments ($836,250) and are then weighted 25% to solid waste and 75% to liquid waste, with no premium applied These percentage weights reflect the ratio of past costs pertaining to solids and liquids at the Gibson Site Thus, actual Past Costs subject to allocation are $6,591,160 ($7,427,410 — $836,250) Allocation of Future Costs (with Premium) The allocation of Future Costs ($17 9 million) is weighted 65% to solid waste and 35% to liquid waste, with a 2 0 buyout premium multiplier These percentage weights reflect the ratio of future costs pertaining to solids and liquids at the Gibson Site Total Cash Out Payment The "Total Cash Out Payment" is the sum of columns [g], [h] and [i] [1) (i] F•\ALPHA\GBSON 10239\WP\040510PZ 385 LECG, LLC