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HomeMy WebLinkAboutContracts & Agreements_17-2000_CCv0001.pdf SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT("Agreement") is entered into by and between the CITY OF REDLANDS ("City"), a California general law city, and LOCKHEED MARTIN CORPORATION("Lockheed Martin"), a Maryland corporation, on the Ist day of February, 2000. RECITALS A plume of dissolved trichloroethylene("TCE") (the "TCE Plume")and a plume of dissolved perchlorate(the "Perchlorate Plume") are situated in the groundwater in the Bunker Hill Basin of San Bernardino County, Califoraia. The Plumes have migrated into the area of the Bunker Hill Basin where certain of the City's groundwater extraction wells are located. The California Regional Water Quality Control Board, Santa Ana Region("Regional Water Board"), ordered that Lockheed Martin investigate the leading edge of the TCE Plume in Order No. 94-37, issued on April 22, 1994. Pursuant to the direction of the Regional Water Board, Lockheed Martin prepared a Water Supply Contingency Plan, dated September 30, 1999, which the Regional Water Board subsequently approved.,with comments. The purnose of the Water Supply Contingency Plan is to ensure a continued supply of drinking water to Bunker Hill Basin water purveyors and their customers. On July 25, 1997, the Board issued Order No. 97-58,requiring that Lockheed Martin develop and implement a remedial action plan for the Perchlorate Plume. Lockheed Martin has timely appealed that Order. 103013755_1 b. In letters to Lockheed Martin, dated June 16, 1997, and October 31, 1997, the Regional Water Board directed that Lockheed Martin address perchlorate in the Water Supply Contingency Plan. The City has incurred certain costs to ensure a continued supply of drinking water to its customers. The purpose of this Agreement is to further the objectives of the Water Supply Contingency Plan, avoid potential litigation and settle outstanding claims between the parties. NOW,THEREFORE, in consideration of the mutual agreements and covenants set forth herein, the City and Lockheed Martin agree as follows: AGREEMENT I Definition: "Past Costs" shall mean any and all costs, fees or other expenditures incurred by the City prior to the date of this Agreement arising out of or relating to ensuring a continued source of drinking water to its customers as a result of or in connection with the existence of the TCE Plume or Perchlorate Plume. 2. Payment: Lockheed Martin shall, within 60 days of final execution of this Agreement,render payment, in the form of a corporate check, to the City in the amount of $3,700,000. 3. Release: The City, for itself, and on behalf of any related entities, absolutely and unconditionally releases, acquits and forever discharges Lockheed Martin and its current, former or future affiliates, subsidiaries,parents, officers, directors, employees, successors, corporate successors,predecessors, assigns, representatives, insurers and attorneys, from any and all 1030875516DOC 2 claims, liabilities, demands, obligations, actions and causes of action, known or unknown, at law or in equity,which they may have or claim to have had,relating to Past Costs. With respect to Past Costs, the City waives the provisions of California Civil Code § 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 4. Covenant Not To Sue: The City, for itself, and on behalf of any related entities, covenants not to sue Lockheed Martin for Past Costs. 5. Future Costs: The City agrees that it will meet and confer with Lockheed Martin prior to incurring future costs, fees or other expenditures arising out of or relating to ensuring a continuous source of drinking water to its customers as a result of or in connection with the existence of the TCE Plume or Perchlorate Plume. 6. Representations and Warranties: (a) The City represents and warrants that, to the best of its knowledge, the documents that it has provided to Lockheed Martin evidencing the Past Costs it has incurred are true, accurate and complete in all material respects. (b) Lockheed Martin represents and warrants that it has reviewed said documents and waives any right it may have to contest the costs, fees,damages and other expenditures reflected therein. 1030975516.DOC 3 Each person signing this Agreement represents and warrants that he or she is fully authorized to execute this Agreement and is acting within the scope of such authority. 7. Successors: This Agreement shall be binding upon and inure to the benefit of the successors, representatives and assigns of the City and Lockheed Martin. 8. No Admission: Pursuant to California Evidence Code section 1152 and 1154, nothing in this Agreement is intended as, shall constitute or shall be used or admitted as evidence of an admission by Lockheed Martin of any fact recited in this Agreement, the validity of any claim, or liability for any damages, including comparative or proportionate liability or fault. 9. Indemnity: The City agrees to defend, indemnify and hold harmless Lockheed Martin as against any claims relating to the use of monies referenced in paragraph 2, above. 10. Covenants: Each party separately represents that: (a) it has been represented by counsel of its choice throughout the negotiation of this Agreement, that it has discussed the terms and conditions of this Agreement with counsel, and that it understands the terms and conditions of this Agreement; (b) no promise or inducement has been offered for this Agreement other than as expressly set forth herein; and (c) the Agreement is intended by the parties hereto as the sole, complete, entire and final expression of their settlement and as a complete and exclusive statement of the terms and provisions thereof-, except as specifically stated in the Agreement, no promises, guarantees or representations regarding the subject matter of the Agreement have been made by any party to the Agreement to any other party. Other than that specifically set forth in the Agreement, no consideration has been, or is offered, 1030875516.DOC 4 promised,expected or held out. In entering into the Agreement, neither party is relying on any representations or promises other than those expressly set forth herein or incorporated by reference. All prior discussions, agreements,negotiations are hereby superseded by and merged and incorporated into the Agreement. 11. Cooperation: The City and Lockheed Martin shall cooperate fully and execute any and all supplementary documents and take all additional actions that may be necessary or appropriate to give full force and effect to the terms of this Agreement. 12. Choice of Law: The Agreement was negotiated and entered into in the State of California, and shall be governed by, construed and enforced in accordance with the laws of the State of California. 13. Authorship: The Agreement is the product of arms-length negotiations carried on between the parties and their respective counsel. As a jointly produced contract,the Agreement shall be construed as a whole according to its fair meaning and not for or against any party hereto, or their legal representative, or the drafter hereof. 14. Amendments: This Agreement may not be amended or modified except in a writing executed by each of the parties. 15, Counterparts: This Agreement may be executed counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to be one and the same instrument. 1030875516.DOC 5 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above. THE CITY OF REDLANDS ATTEST: By: y; Pat Gilbreath, Mayor Lorrie-'oy,'er, Gilt rk LOCKHEED MARTIN CORPORATION By: 10308755 16,DOC