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08-0325_CHEVRON U.S.A. INC_Tolling Agreement0 0 TOLLING AGREEMENT This Tolling Agreement ("Agreement') is effective March 25 2008 ("Effective Date") by and between the City of San Juan Capistrano ("the City") and Chevron U.S.A. Inc., a Delaware corporation ("Chevron") (the City and Chevron are collectively referred to as "Parties" and individually as "Party"). RECITALS A. WHEREAS, Chevron owns a retail service station at 32001 Camino Capistrano, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-3417, and a retail service station at 26988 Ortega Highway, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-8719 (collectively, the "Station Properties"); B. WHEREAS, the City leases a groundwater recovery plant located at 32450 Paseo Adelanto, in the City of San Juan Capistrano, County of Orange, State of California; C. WHEREAS, the City may have claims or allegations against Chevron arising out of MTBE detected in the groundwater that feeds the groundwater recovery plant leased by the City ("MTBE Contamination"), and Chevron may have counterclaims, cross-claims, or independent claims of its own against the City arising out of the MTBE Contamination; D. WHEREAS, the Parties agree that it is in their best interest to defer or avoid litigation of alleged claims, if any, of and/or by the City against Chevron, and of alleged claims, if any, of and/or by Chevron against the City arising out of the MTBE Contamination; and E. WHEREAS, the Parties desire to toll the running of any statute of limitations and any other time -related defense with respect to any rights, claims, causes of action, counterclaims, cross-claims, and defenses arising out of the MTBE Contamination (the "Claims"). AGREEMENT THEREFORE, in consideration of the mutual covenants and conditions set forth, the Parties hereto agree as follows: 1. Tolling of Claims. The Parties agree to toll any applicable statute of limitations and any other -time related defense, if any, applicable to the Claims, for a period of time commencing on the Effective Date and continuing until February 1, 2010 (the "Tolling Period"). The Tolling Period may be extended by written agreement of the Parties. 569100.1 U 0 (a) The tolling shall apply equally to all Claims arising during the term of this Agreement. (b) The Parties agree that the Tolling Period shall be excluded from all computations of any statute of limitations applicable to the Claims. The Parties agree that each shall not plead, assert, or otherwise raise any statue of limitations or any other time -related defense applicable to the Claims, to the extent such is tolled by this Agreement, as a bar to or other limitation on any claims. (c) The Parties agree that the Tolling Period shall not limit or otherwise affect the duty of a Party, if any, to mitigate losses, damages, or injury. (d) This Agreement constitutes a valid and effective written agreement to toll pursuant to Section 360.5 of the California Code of Civil Procedure. 2. Covenant Not to Sue. The Parties agree not to sue or otherwise prosecute any Claims until either the expiration of the Tolling Period, as set forth in Section 1 (Tolling of Claims), or the termination of the Tolling Period, as set forth in Section 3 (Withdrawal from the Agreement). 3. Withdrawal from the Agreement. Either Party may, upon written notice to the other Party, sent by certified mail return receipt requested and properly addressed to the business offices of the other Party, elect to withdraw from this Agreement. Such withdrawal may occur irrespective of the consent of the other Party. The Tolling Period shall terminate thirty (30) days following receipt of the notice of withdrawal. 4. Alternative Dispute Resolution. Nothing in this Agreement prohibits the Parties from engaging in informal alternative dispute resolution, including, but not limited to, mediation. Any agreement by the Parties to engage in informal alternative dispute resolution during the terms of this Agreement does not affect the respective duties and obligations of the Parties. 5. No Waiver. This Agreement shall not constitute a waiver or release of any defenses of either the City or Chevron based on the running of time under an applicable statute of limitations or other time related defense which arose, accrued, or would have barred any Claims prior to the Effective Date. Furthermore, by this Agreement, the Parties do not waive their rights to assert any other defense or objection to any Claims other than as expressly provided herein. 6. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be deemed given or made only if in writing and deposited in the United States mail, postage prepaid and addressed to the party for whom intended, addressed as follows, or to such other address as may, from, time to time, be designated by written notice to the other Parties: To Chevron: Jill C. Teraoka, Esq. Bingham McCutchen LLP 355 South Grand Ave, Suite 4400 Los Angeles, CA 90071 569100.1 0 • To the City: Bradley R. Hogin, Esq. Woodruff, Spradlin & Smart, APC 555 Anton Boulevard, Suite 12000 Costa Mesa, CA 92626 7. Govemiru4 Law. This Agreement shall be governed by and construed under the laws of the State of California. 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed in original, but all of which together shall constitute one and the same agreement. 9. Breach. The Parties understand and agree that no breach of any provision or provisions of this Agreement can be waived unless done so expressly in writing. A waiver of one breach shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. 10. Severability. If any provision of this Agreement is determined to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties. In any event, the remaining provisions shall be deemed valid and enforceable to the maximum extent possible. 11. Authority. Each of the undersigned represents and warrants that he/she has the authority to bind the Party on behalf of whom he/she signs and that the other Party hereto is entitled to rely upon such representation for all legal purposes. 12. Parties Covered. This Agreement shall be signed by the Parties and shall inure to the benefit of the Parties' successors and assigns. 13. No Admission of Liability. Neither the execution of this Agreement nor anything contained in it is intended to be, nor shall be deemed to be, an admission by either Party of any liability or an admission of the existence of facts upon which liability could be based. 14. Amendments and Modifications. This Agreement may be amended or modified only by a written agreement signed by the Parties to this Agreement. 15. Entire Agreement. This Agreement constitutes the entire understanding between the Parties hereto with respect to the subject matter set forth herein and supersedes any and all prior or other contemporaneous understandings, correspondence, negotiations, or agreements, written or oral, between them regarding the subject matter of this Agreement. No alterations, modifications or interpretations hereof shall be binding unless in writing and signed by the Parties. 3 5691001 0 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the dates written below. CITY OF SA JUAN APISTRAN0, a California Municip orp alio DATED: / 12008 By: Name: Joe S to Title: Mao ATTEST By: Name• Me Monahan Title: Ciy Clerk CHEVRON U.S.A. INC., a Delaware Corporation DATED: , 2008 By: Name APPROVED AS TO FORM: SAN JUAN CAPISTRANO DATED: 2 2008 By: i Bradley R. Hogin Woodruff, Spradlin & Smart CHEVRON U.S.A. INC. DATED: , 2008 By: Jill C. Teraoka Bingham McCutchen LLP 4 569100.1 U 0 TOLLING AGREEMENT / This Tolling Agreement ("Agreement") is effective March27 2008 ("Effective Date") by and between the City of San Juan Capistrano ("the City") and Chevron U.S.A. Inc., a ,nsylJantG_are corporation ("Chevron") (the City and Chevron are collectively referred to as "Parties" and individually as "Party"). RECITALS A. WHEREAS, Chevron owns a retail service station at 32001 Camino Capistrano, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-3417, and a retail service station at 26988 Ortega Highway, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-8719 (collectively, the "Station Pmperties' j; B. WHEREAS, the City leases a groundwater recovery plant located at 32450 Paseo Adelanto, in the City of San Juan Capistrano, County of Orange, State of California; C. WHEREAS, the City may have claims or allegations against Chevron arising out of MTBE detected in the groundwater that feeds the groundwater recovery plant leased by the City ("MTBE Contamination"), and Chevron may have counterclaims, cross-claims, or independent claims of its own against the City arising out of the MTBE Contamination;, D. WHEREAS, the Parties agree that it is in their best interest to defer or avoid litigation of alleged claims, if any, of and/or by the City against Chevron, and of alleged claims, if any, of and/or by Chevron against the City arising out of the MTBE Contamination; and E. WHEREAS, the Parties desire to toll the running of any statute of limitations and any other time -related defense with respect to any rights, claims, causes of action, counterclaims, cross-claims, and defenses arising out of the MTBE Contamination (the "Claims"). AGREEMENT THEREFORE, in consideration of the mutual covenants and conditions set forth, the Parties hereto agree as follows: 1. Tolling of Claims. The Parties agree to toll any applicable statute of limitations and any other -time related defense, if any, applicable to the Claims, for a period of time commencing on the Effective Date and continuing until February 1, 2010 (the "rolling Period"). The Tolling Period may be extended by written agreement of the Parties. 50100.1 ATTACHMENT 1 (a) The tolling shall apply equally to all Claims arising during the term of this Agreement. (b) The Parties agree that the Tolling Period shall be excluded from all computations of any statute of limitations applicable to the Claims. The Parties agree that each shall not plead, assert, or otherwise raise any statue of limitations or any other time -related defense applicable to the Claims, to the extent such is tolled by this Agreement, as a bar to or other limitation on any claims. (c) The Parties agree that the Tolling Period shall not limit or otherwise affect the duty of a Party, if any, to mitigate losses, damages, or injury. (d) This Agreement constitutes a valid and effective written agreement to toll pursuant to Section 360.5 of the California Code of Civil Procedure. 2. Covenant Not to Sue. The Parties agree not to sue or otherwise prosecute any Claims until either the expiration of the Tolling Period, as set forth in Section 1 (Tolling of Claims), or the termination of the Tolling Period, as set forth in Section 3 (Withdrawal from the Agreement). 3. Withdrawal from the Agreement. Either Party may, upon written notice to the other Party, sent by certified mail return receipt requested and properly addressed to the business offices of the other Party, elect to withdraw from this Agreement. Such withdrawal may occur irrespective of the consent of the other Party. The Tolling Period shall terminate thirty (30) days following receipt of the notice of withdrawal. 4. Alternative Dispute Resolution. Nothing in this Agreement prohibits the Parties from engaging in informal alternative dispute resolution, including, but not limited to, mediation. Any agreement by the Parties to engage in informal alternative dispute resolution during the terms of this Agreement does not affect the respective duties and obligations of the Parties. 5. No Waiver. This Agreement shall not constitute a waiver or release of any defenses of either the City or Chevron based on the running of time under an applicable statute of limitations or other time related defense which arose, accrued, or would have barred any Claims prior to the Effective Date. Furthermore, by this Agreement, the Parties do not waive their rights to assert any other defense or objection to any Claims other than as expressly provided herein. 6. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be deemed given or made only if in writing and deposited in the United States mail, postage prepaid and addressed to the party for whom intended, addressed as follows, or to such other address as may, from, time to time, be designated by written notice to the other Parties: To Chevron: Jill C. Teraoka, Esq. Bingham McCutchen LLP 355 South Grand Ave, Suite 4400 Los Angeles, CA 90071 5691001 r 0 0 To the City: Bradley IL Hogin, Esq. Woodruff, Spradlin & Smart, APC 555 Anton Boulevard, Suite 12000 Costa Mesa, CA 92626 7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California. 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed in original, but all of which together shall constitute one and the same agreement. 9. Breach. The parties understand and agree that no breach of any provision or provisions of this Agreement can be waived unless done so expressly in writing. A waiver of one breach shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. 10. Severability. If any provision of this Agreement is determined to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties. In any event, the remaining provisions shall be deemed valid and enforceable to the maximum extent possible. 11. Authority. Each of the undersigned represents and warrants that he/she has the authority to bind the Party on behalf of whom he/she signs and that the other Party hereto is entitled to rely upon such representation for all legal purposes. 12. Parties Covered. This Agreement shall be signed by the Parties and shall inure to the benefit of the Parties' successors and assigns. 13. No Admission of Liability. Neither the execution of this Agreement nor anything contained in it is intended to be, not shall be deemed to be, an admission by either Party of any liability or an admission of the existence of facts upon which liability could be based. 14. Amendments and Modifications. This Agreement may be amended or modified only by a written agreement signed by the Parties to this Agreement. 15. Entire Agreement. This Agreement constitutes the entire understanding between the Parties hereto with respect to the subject matter set forth herein and supersedes any and all prior or other contemporaneous understandings, correspondence, negotiations, or agreements, written or oral, between them regarding the subject matter of this Agreement. No alterations, modifications or interpretations hereof shall be binding unless in writing and signed by the Parties. 369100.1 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the dates written below. CITY OF SAN JUAN CAPISTRANO, a California Municipal Corporation DATED: , 2008 By: Name: Joe Soto Title: Mayor ATTEST By: Name: Meg Monahan Title: City Clerk t�x�nsy �van�a. CHEVRON U.S.A. INC., a Delaware Corporation DATED:2008 By: Nam Titl / wr G APPROVED AS TO FORM: 569100.1 SAN JUAN CCAPISTRANNOO DATED: 3 2 2008 By: 'K4e4 /• !Y f Bradley R Hogin Woodruff, Spradlin & Smart CHEVRON U.S.A. INC. DATED:, 2008 By: Jill C.�Ieraoka Bingham McCutchen LLP 569100.1 • TRANSMITTAL TO: Omar Sandoval, City Attorney FROM: Meg Monahan, City Clerk SUBJECT: Tolling agreement — Chevron Attached: 11 (2) original executed tolling agreements as approved by the City Council on April 1, 2008. Action Needed: Please arrange for execution by Chevron, and Return one original executed agreement returned to the City Clerk's office. Thank you, CC: Cynthia L. Russell, Assistant City Manager .,: • AGENDA REPORT TO: Dave Adams, City Manager 96` FROM: Omar Sandoval, City Attorney 4/11/2008 D13 SUBJECT: Approval of Tolling Agreement Between the City of San Juan Capistrano and Chevron U.S.A., Inc. By motion, approve the Tolling Agreement with Chevron U.S.A., Inc. and authorize the Mayor to execute it. The City has demanded that Chevron make the City whole for damages resulting from MTBE contamination of the City's water supply caused by leaks of contaminants from Chevron's property. Chevron has responded that it is currently investigating the source and extent of the contamination under the direction of the Orange County Health Care Agency (OCHCA). Chevron has further stated that it intends to perform remediation of the contamination, as required by the OCHCA. The City and Chevron are currently attempting to cooperate to address the concerns of the City. Chevron believes that the matter may be resolved without the undue time and expense of litigation. To this end, Chevron has agreed to enter into a tolling agreement wherein the City and Chevron agree to toll any applicable statute of limitations applicable to claims and defenses of either party. The Tolling Agreement would become effective March 25, 2008 and will toll any applicable statute of limitations through February 1, 2010. The tolling period may be extended in the future by written agreement of the City and Chevron. The Tolling Agreement will allow the City and Chevron to continue to investigate the extent of the contamination without the need to file a court action to preserve any applicable statute of limitation. FINANCIAL CONSIDERATIONS: There are no impacts on the City's General Fund as a result of this action. Agenda Report • • Page 2 April 1, 2008 NOTIFICATION: Natasha Molla, *Agenda Report included RECOMMENDATION: By motion, approve the Tolling Agreement with Chevron U.S.A., Inc. and authorize the Mayor to execute it. Respectfully submitted, Omar Sandoval City Attorney Attachment: 1. Tolling Agreement 0 0 TOLLING AGREEMENT This Tolling Agreement ("Agreement") is effective March��2008 ("Effective Date") by and between the City of San Juan Capistrano ("the City") and Chevron U.S.A. Inc., a Delaware corporation ("Chevron") (the City and Chevron are collectively referred to as "Parties" and individually as "Party"). RECITALS A. WHEREAS, Chevron owns a retail service station at 32001 Camino Capistrano, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-3417, and a retail service station at 26988 Ortega Highway, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Chevron CORO Service Station No. 9-8719 (collectively, the "Station Properties"); B. WHEREAS, the City leases a groundwater recovery plant located at 32450 Paseo Adelanto, in the City of San Juan Capistrano, County of Orange, State of California; C. WHEREAS, the City may have claims or allegations against Chevron arising out of MTBE detected in the groundwater that feeds the groundwater recovery plant leased by the City ("MTBE Contamination"), and Chevron may have counterclaims, cross-claims, or independent claims of its own against the City arising out of the MTBE Contamination; D. WHEREAS, the Parties agree that it is in their best interest to defer or avoid litigation of alleged claims, if any, of and/or by the City against Chevron, and of alleged claims, if any, of and/or by Chevron against the City arising out of the MTBE Contamination; and E. WHEREAS, the Parties desire to toll the running of any statute of limitations and any other time -related defense with respect to any rights, claims, causes of action, counterclaims, cross-claims, and defenses arising out of the MTBE Contamination (the "Claims"). AGREEMENT in consideration of the mutual covenants and conditions set forth, the Parties hereto agree as follows: 1. Tolline of Claims. The Parties agree to toll any applicable statute of limitations and any other -time related defense, if any, applicable to the Claims, for a period of time commencing on the Effective Date and continuing until February 1, 2010 (the "Tolling Period"). The Tolling Period may be extended by written agreement of the Parties. 569100.1 ATTACHMENT 11 0 (a) The tolling shall apply equally to all Claims arising during the term of this Agreement. (b) The Parties agree that the Tolling Period shall be excluded from all computations of any statute of limitations applicable to the Claims. The Parties agree that each shall not plead, assert, or otherwise raise any statue of limitations or any other time -related defense applicable to the Claims, to the extent such is tolled by this Agreement, as a bar to or other limitation on any claims. (c) The Parties agree that the Tolling Period shall not limit or otherwise affect the duty of a Parry, if any, to mitigate losses, damages, or injury. (d) This Agreement constitutes a valid and effective written agreement to toll pursuant to Section 360.5 of the California Code of Civil Procedure. 2. Covenant Not to Sue. The Parties agree not to sue or otherwise prosecute any Claims until either the expiration of the Tolling Period, as set forth in Section 1 (Tolling of Claims), or the termination of the Tolling Period, as set forth in Section 3 (Withdrawal from the Agreement). 3. Withdrawal from the Amement. Either Party may, upon written notice to the other Party, sent by certified mail return receipt requested and properly addressed to the business offices of the other Party, elect to withdraw from this Agreement. Such withdrawal may occur irrespective of the consent of the other Party. The Tolling Period shall terminate thirty (30) days following receipt of the notice of withdrawal. 4. Alternative Dispute Resolution. Nothing in this Agreement prohibits the Parties from engaging in informal alternative dispute resolution, including, but not limited to, mediation. Any agreement by the Parties to engage in informal alternative dispute resolution during the terms of this Agreement does not affect the respective duties and obligations of the Parties. 5. No Waiver. This Agreement shall not constitute a waiver or release of any defenses of either the City or Chevron based on the running of time under an applicable statute of limitations or other time related defense which arose, accrued, or would have barred any Claims prior to the Effective Date. Furthermore, by this Agreement, the Parties do not waive their rights to assert any other defense or objection to any Claims other than as expressly provided herein. 6. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be deemed given or made only if in writing and deposited in the United States mail, postage prepaid and addressed to the party for whom intended, addressed as follows, or to such other address as may, from, time to time, be designated by written notice to the other Parties: To Chevron: Jill C. Teraoka, Esq. Bingham McCutchen LLP 355 South Grand Ave, Suite 4400 Los Angeles, CA 90071 569100.1 0 0 To the City: Bradley R. Hogin, Esq. Woodruff, Spradlin & Smart, APC 555 Anton Boulevard, Suite 12000 Costa Mesa, CA 92626 7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California. 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed in original, but all of which together shall constitute one and the same agreement. 9. Breach. The Parties understand and agree that no breach of any provision or provisions of this Agreement can be waived unless done so expressly in writing. A waiver of one breach shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. 10. Severability. If any provision of this Agreement is determined to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties. In any event, the remaining provisions shall be deemed valid and enforceable to the maximum extent possible. 11. Authority. Each of the undersigned represents and warrants that he/she has the authority to bind the Party on behalf of whom he/she signs and that the other Party hereto is entitled to rely upon such representation for all legal purposes. 12. Parties Covered. This Agreement shall be signed by the Parties and shall inure to the benefit of the Parties' successors and assigns. 13. No Admission of Liability. Neither the execution of this Agreement nor anything contained in it is intended to be, nor shall be deemed to be, an admission by either Party of any liability or an admission of the existence of facts upon which liability could be based. 14. Amendments and Modifications. This Agreement may be amended or modified only by a written agreement signed by the Parties to this Agreement. 15. Entire Agreement. This Agreement constitutes the entire understanding between the Parties hereto with respect to the subject matter set forth herein and supersedes any and all prior or other contemporaneous understandings, correspondence, negotiations, or agreements, written or oral, between them regarding the subject matter of this Agreement. No alterations, modifications or interpretations hereof shall be binding unless in writing and signed by the Parties. 3 569100.1 C� Cl IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the dates written below. DATED: 2008 CITY OF SAN JUAN CAPISTRANO, a California Municipal Corporation Name: Joe Soto Title: Mayor ATTEST By: Name: Meg Monahan Title: City Clerk CHEVRON U.S.A. INC., a Delaware Corporation DATED: , 2008 By: Name: APPROVED AS TO FORM: SAN JUAN CAPISTRANO DATED: ZS, 2008 BBy radley !KHogin Woodruff, Spradlin & Smart CHEVRON U.S.A. INC. DATED: 2008 By: Jill C. Teraoka Bingham McCutchen LLP 4 569100.1 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www sanjuancapistrano. org Jwrin � i IA[CAtOAATfO • fsreeusem 1961 1776 • MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO The City Council of San Juan Capistrano will meet at 6:30 p.m. on Tuesday, April 1, 2008 in the City Council Chamber in City Hall, to consider: "Approval of Tolling Agreement Between the City of San Juan Capistrano and Chevron U.S.A., Inc" — Item No. D13. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, March 31, 2008 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Omar Sandoval, City Attorney. You may contact that staff member at (949) 443-6312 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.oro. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: cityclerk(a)sanivancapistrano.org. Meg Monahan, MMC City Clerk cc: Natasha Molla`; Omar Sandoval, City Attorney Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future Z) Pnnfetl on 100% recycled paper