11-0307_CHEVRON USA, INC._Settlement AgreementCONFIDENTIAL SETTLEMENT COMMUNICATION
SUBJECT TO CALIFORNIA EVIDENCE CODE & 1142
AND/OR FEDERAL RULE OF EVIDENCE 408
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and entered into on March , 2011,
by and between the CITY OF SAN JUAN CAPISTRANO, a California municipal
corporation ("City"), and CHEVRON U.S.A. INC., a Pennsylvania corporation
("Chevron"). The City and Chevron are collectively referred to as "Parties" and
individually as "Party."
I. RECITALS
A. WHEREAS, Chevron owns or otherwise has responsibility for retail service
stations in the City of San Juan Capistrano, County of Orange, State of California (the
"Chevron Stations");
B. WHEREAS, the City leases and operates a groundwater recovery plant
("GWRP"), located at 32450 Paseo Adelanto, in the City of San Juan Capistrano,
County of Orange, State of California;
C. WHEREAS, the City owns and operates six (6) groundwater wells that provide
water to the GWRP in the City of San Juan Capistrano, County of Orange, State of
California, commonly referred to as the Capistrano Valley Water District No. 1
("CVWD1 ") Well, the Dance Hall Well, the Kinoshita Well, the San Juan Basin Authority
No. 2 ("SJBA2") Well, the San Juan Basin Authority Well No. 4 ("SJBA4") Well, and the
Tirador Well;
D. WHEREAS, the City is constructing two new groundwater wells, the South Cooks
Park and Well Site No. 5, which it anticipates completing in early 2011;
E. WHEREAS, MtBE (defined below) has been detected in the influent groundwater
samples collected from the Dance Hall Well;
F. WHEREAS, by letter dated February 4, 2008, the Orange County Health Care
Agency ("OCHCA") directed Chevron, inter alis, to submit an interim remedial action
plan to mitigate MTBE originating from Chevron Station No. 9-3417 ("9-3417 Plume");
G. WHEREAS, in response to the OCHCA's February 4, 2008 directive, Chevron
prepared an Interim Remedial Action Plan ("IRAP") dated March 26, 2008. In the TRAP,
Chevron proposed to remediate the 9-3417 Plume through a wellhead treatment system
at the Dance Hall Well using granular activated carbon ("GAC") with greensand filtration
as the treatment technology (the "Dance Hall Wellhead Treatment System"). In the
IRAP, Chevron also proposed to design, permit, construct, and implement the Dance
Hall Wellhead Treatment System. The OCHCA approved the IRAP by letter dated May
14, 2008;
H. WHEREAS, the City and Chevron could not agree on Chevron's proposed design
for the Dance Hall Wellhead Treatment System and, instead, the City will install and
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operate its own GAC treatment system at the GWRP which will treat water from the
Dance Hall well and any other City wells the City chooses to treat;
I. WHEREAS, the City alleges that MtBE for which Chevron is responsible has
contaminated groundwater pumped from the City's six wells, and Chevron disputes the
City's allegation;
J. WHEREAS, recognizing the expense and time of litigation, the Parties have
agreed to settle their respective claims, rights, responsibilities, and obligations relating
to the Chevron Stations, the MtBE Contamination (defined below), the GWRP, and the
City's six wells; and
K. WHEREAS, this Agreement is intended to effect the settlement of claims which
are denied and contested, and nothing herein shall be construed as an admission by
any Party of any fault or liability of any kind.
11. DEFINITIONS
Terms used in this Agreement shall have the meanings defined below or as
otherwise defined in this Agreement:
1. "Business Day" means any day other than (a) a Saturday or a Sunday, or
(b) a day on which commercial banks in California are closed.
2. "CAO" means the Revised Cleanup and Abatement Order No. R9-2009-
0124, issued by the Regional Board (defined below) on December 23, 2009, and any
revisions, addenda, and/or amendments thereto, including but not limited to Addendum
No. 1 issued on November 23, 2010.
3. "Chevron MtBE Water Commodity Surcharge" means the surcharge which
the City described in a Notice of Public Hearing dated July 30, 2010 as necessary in
order to "cover the excess costs being incurred due to Chevron's contamination of the
City's groundwater."
4. "Chevron Station No. 9-3417" means the Chevron service station located
at 32001 Camino Capistrano in San Juan Capistrano, California.
5. "Claims" means any and all claims, demands, actions, causes of action,
suits, liens, penalties, covenants, warranties, fines, fees (including attorneys' or
consultants'/experts' fees and costs), judgments, duties, rights, expenses, costs, debts,
obligations, payments, rights of contribution or indemnification, liabilities, and damages
or injuries of any nature and kind (including, without limitation, diminution in value;
stigma; property damage; lost profits; lost enjoyment or use; lost rentals; lost sales; lost
opportunities; lost interest; personal injuries; emotional pain, suffering, and distress;
fear; worry; medical costs and expenses; compensatory damages; consequential
damages; economic damages; punitive or exemplary damages; environmental
damages; natural resource damages; costs of investigation, remediation, treatment,
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response, restoration, or abatement), whether at law or equity, whether based on tort or
contract, or whether under any past, present, or future local, state or federal law,
common law, statute, ordinance, or regulation (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act; the Safe Drinking Water Act; the Clean
Water Act; and/or the California Health & Safety, Water, Fish & Game, or Business &
Professions Codes), that arise out of, relate to, and/or result from any Contaminants
distributed at, transported to, sold at, originating at, spilled at, leaked at, and/or released
at, by, or from the Chevron Stations.
6. "Contaminants" means any hazardous, toxic, harmful, or potentially harmful
substance, chemical, waste, or matter, including, but not limited to: (a) Petroleum Products;
(b) any substance which is a "hazardous waste" as defined by the Resource Conservation
and Recovery Act (42 U.S.C. §§ 6901, et seg.) and regulations promulgated thereunder;
(c) any substance which is a "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. §§ 9601, et seg.) and
regulations promulgated thereunder; (d) any substance which is a "hazardous material' as
defined by California Health & Safety Code section 25260(d) and any regulations
promulgated relating thereto; (e) any substance which is a "hazardous substance" as
defined by California Health & Safety Code section 25316 and any regulations promulgated
relating thereto; (f) any chemicals listed at Title 27, California Code of Regulations
section 27001, pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986
(California Health & Safety Code §§ 25249.5, et seg.) as being known to the State of
California to cause cancer or reproductive toxicity; and (g) any other substance, material, or
waste which is or becomes regulated by any federal, state, or local governmental authority.
7. "Contamination" means the presence of Contaminants in the air, soil, soil
vapor, surface water, and/or groundwater.
8. "Effective Date" means the day this Agreement has been executed by the
Parties and each Party has notified the other Party of its execution.
9. "Escrow Account" means the bilateral escrow account between Chevron
and the Escrow Agent (defined below) to hold the funds to be deposited by Chevron
pursuant to Section 17 below.
10. "Escrow Agent" shall be a financial institution, with S&P rating of A- or
better, to be selected by Chevron to administer the Escrow Account.
11. "Governmental Agency" means any federal, state, or local governmental,
quasi -governmental or regulatory entity, department, commission, board, agency,
authority, legislative body, or instrumentality.
12. "MtBE" means methyl tertiary butyl ether and any associated breakdown
products thereof.
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13. "MtBE Contamination" means the presence of MtBE in air, soil, soil vapor,
surface water, and/or groundwater.
14. "Petroleum Products" means gasoline, gasoline components, gasoline
oxygenates, and petroleum hydrocarbons, including, without limitation, MtBE, tertiary
butyl alcohol ("TBA"), disopropyl ether ("DIPE"), tertiary amyl methyl ether ("TAME"),
ethyl tertiary butyl ether ("ETBE"), ethanol, benzene, toluene, ethyl benzene, trimethyl
benzene, total xylene, total petroleum hydrocarbons as gasoline ("TPHg"), total
petroleum hydrocarbons as diesel ("TPI -Id"), and breakdown or degradation products
thereof.
15. "Regional Board" means the California Regional Water Quality Control
Board, San Diego Region, or any other agency which assumes jurisdiction over the
investigation and cleanup of Contaminants distributed at, transported to, sold at,
originating at, spilled at, leaked at, and/or released at, by, or from the Chevron Stations.
III. TERMS AND CONDITIONS
THEREFORE, in consideration of the mutual promises contained in this
Agreement, the Parties, and each of them, agree as follows:
16. Payment
16.1. Initial Payment: Chevron shall pay the City One Million Five
Hundred Thousand Dollars ($1.5 million) within thirty (30) Business Days after
the Effective Date and Chevron's receipt of wiring instructions in writing from the
City. Chevron's initial payment shall be made by wire transfer pursuant to the
wiring instructions provided by the City.
16.2. Subsequent Disbursements: Each of the amounts specified below
will be disbursed to the City if and when each of the corresponding conditions
described below has been satisfied. Any funds remaining in the Escrow Account
at the Termination Date (defined below) shall be refunded to Chevron.
16.2.1. Fifty Thousand Dollars ($50,000) will be disbursed to
the City within thirty (30) Business Days after the Escrow Account has
been established in recognition that the City has withdrawn its "Chevron
MtBE Water Commodity Surcharge."
16.2.2. Five Hundred Thousand Dollars ($500,000) will be
disbursed to the City within thirty (30) Business Days after the Escrow
Account has been established and after the City actively participates in a
meeting among the Regional Board, Chevron, and the City, as described
in Section 22 below.
16.2.3. Five Hundred Fifty Thousand Dollars ($550,000) will
be disbursed to the City within thirty (30) Business Days after the Escrow
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AND/OR FEDERAL RULE OF EVIDENCE 408
Account has been established and after the City provides Chevron a
conformed copy of the notice of completion and the information listed in
Exhibit A evidencing that the City has completed the construction and
installation of its GAC treatment system as described in Section 20.1
below.
16.2.4. Five Hundred Thousand Dollars ($500,000) will be
disbursed to the City within forty-five (45) Business Days after it provides
Chevron notice and the information listed in Exhibit B evidencing that the
City has operated its GAC treatment system for 12 months and the
Regional Board (or whichever Governmental Agency has jurisdiction over
the investigation and remediation of the 9-3417 Plume) has determined
that the City's GAC treatment system is an effective final remedial action
and no other remediation by Chevron of the 9-3417 Plume downgradient
of Chevron Station No. 9-3417 is necessary. However, if such a
determination by the Regional Board or other Governmental Agency is
challenged by any party, then no disbursement will be made to the City
under this Section unless and until the Regional Board's or other
Governmental Agency's determination is confirmed and finalized after any
and all administrative and/or judicial review processes have been
completed. In that case, $500,000 will be disbursed to the City within
forty-five (45) Business Days after the Regional Board's or other
Governmental Agency's determination is confirmed and finalized after any
and all administrative and/or judicial review processes have been
completed. The Parties agree to work together cooperatively to represent
and implement a remediation approach that is satisfactory to the Regional
Board and other Governmental Agencies and agree not to challenge the
Regional Board or other Governmental Agency's determination that the
City's GAC treatment system is an effective remedial action and no other
remediation by Chevron of the 9-3417 Plume downgradient of Chevron
Station No. 9-3417 is necessary.
17. Escrow Account
17.1. Upon execution of this Agreement, Chevron shall promptly
establish an Escrow Account with the Escrow Agent. The funds in the Escrow
Account shall be disbursed to the City according to the terms and conditions
specified in Section 16.2 above.
17.2. Within 15 calendar days of the establishment of the Escrow
Account, Chevron shall deposit One Million Six Hundred Thousand Dollars ($1.6
million) into the Escrow Account.
17.3. The Escrow Account will be closed upon the first of the following
events to occur (the "Termination Date"):
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17.3.1. Thirty (30) months after the Escrow Account has been
established; or
17.3.2. A written agreement between the City and Chevron
that Chevron may close the Escrow Account.
17.4. If any money remains in the Escrow Account as of the Termination
Date, the Escrow Agent shall remit the money remaining in the Escrow Account
to Chevron before closing the Escrow Account.
18. Release
18.1. In exchange for the payments described in Section 16 above and
the executed Agreement, the City on behalf of itself, its predecessors,
successors, present and former Mayors, Commissioners, City Councilmembers,
employees, representatives, agents, attorneys, assigns, consultants, nominees,
and each of them, shall and hereby does relieve, release, exonerate, and forever
discharge Chevron, including any and all of its predecessors, successors,
partners, principals, officers, directors, employees, representatives, agents,
attorneys, assigns, nominees, shareholders, consultants, joint ventures, parents,
subsidiaries, affiliates, and any of their predecessors, heirs, successors, and
assigns, from any and all Claims of whatever nature, whether now known or
unknown, suspected or unsuspected, which may exist, have existed, or hereafter
can, will, or may exist, based upon or related in any way to Contamination
originating at, by, or from the Chevron Stations, or any damages arising directly
or indirectly therefrom.
18.2. The City expressly waives any and all rights and benefits conferred
upon it by the provision of Section 1542 of the California Civil Code, which states
as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him
or her must have materially affected his or her settlement
with the debtor.
Notwithstanding this provision, this Agreement will constitute a full
release in accordance with its terms. The City knowingly and voluntarily waives the
provisions of Section 1542, as well as any other statute, law, or rule of similar effect,
and acknowledges and agrees that this waiver is an essential and material term of
this Agreement, and that without such waiver this Agreement would not have been
entered into by the Parties.
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19. Covenant Not To Sue
19.1. The City hereby covenants and agrees not to bring any Claim,
action, suit, or proceeding against Chevron or any of its predecessors,
successors, partners, principals, officers, directors, employees, representatives,
agents, attorneys, assigns, nominees, shareholders, consultants, joint ventures,
parents, subsidiaries, affiliates, and any of their predecessors, heirs, successors,
and assigns, directly or indirectly, based upon or related in any way to
Contamination originating at the Chevron Stations, or any damages arising
directly or indirectly therefrom, and the City further covenants and agrees that, in
the absence of material breach, this Agreement is a bar to any such Claim,
action, suit, or proceeding.
19.2. If the City initiates any Claim, action, suit, or proceeding against
Chevron in violation of this Agreement, the City shall be liable to Chevron for all
of Chevron's reasonable attorneys' fees, costs, and consultants'/experts' fees
incurred in connection with such Claim, action, suit or proceeding.
20. City's GAC Treatment System
20.1. MtBE Contamination originating at the Chevron Stations will be
remediated by the City's operation of a GAC treatment system to be installed by
the City at the GWRP to treat water pumped from all of the City's groundwater
wells.
20.1.1. The City shall use its best efforts to operate the GAC
treatment system on all days that the GWRP is operating, unless
prohibited from doing so by routine or emergency maintenance or repair
requirements (which will be conducted in a timely manner). Recognizing
that the operation of the GAC treatment system will depend on the
operation of the GWRP and the City's groundwater wells, unless
prohibited from doing so by routine or emergency maintenance or repair
requirements (which will be conducted in a timely manner), the City shall
operate the GWRP until the Regional Board (or whichever Governmental
Agency has jurisdiction over the investigation and remediation of the 9-
3417 Plume) determines that the operation of the City's GAC treatment
system is no longer necessary for the remediation of the 9-3417 Plume
downgradient of Chevron Station No. 9-3417.
20.1.2. Except for routine or emergency maintenance or
repair requirements (which will be conducted in a timely manner), at no
point before the Regional Board (or whichever Governmental Agency has
jurisdiction over the investigation and remediation of the 9-3417 Plume)
determines that the operation of the City's GAC treatment system is no
longer necessary for the remediation of the 9-3417 Plume downgradient of
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Chevron Station No. 9-3417 shall the City unreasonably cease operation
of the GWRP.
20.2. The City agrees that it will pump the Dance Hall well and/or at least
two of the three downgradient wells (CVWD1, SJBA2, and SJBA4) on a
continuous basis for at least 80% of the time during each calendar year, except
for routine or emergency maintenance and repairs (which will be conducted in a
timely manner), and will maximize the operation of its GAC treatment system to
remove from the San Juan Groundwater Basin the greatest amount of MtBE
Contamination originating at the Chevron Stations while meeting the supply
demands of the residents of San Juan Capistrano. Provided, however, that City
reserves the right to determine the most efficient and effective manner in which
to operate the GAC treatment system and the GWRP on a daily basis.
21. Cooperation
21.1. The City will fully cooperate with Chevron in allowing Chevron to
conduct its assessment and remediation activities, including: (a) the City will
process Chevron's permit applications and issue permits in a timely manner, and
(b) the City will reasonably allow Chevron to conduct assessment and
remediation activities on City property. In addition, the City agrees to work
cooperatively with Chevron to represent and implement a remediation approach
that is satisfactory to the Regional Board and other Governmental Agencies.
21.2. The City will not in any way: (a) encourage any party, including but
not limited to any Governmental Agency, to take action against Chevron with
regard to any Contamination originating at the Chevron Stations, or (b) interfere
with Chevron's proposals to the Regional Board or dealings with CalTrans. Any
such action by the City shall constitute a material breach of this Agreement.
22. Meeting With The Regional Board
22.1. The City and Chevron will meet together with the Regional Board to
discuss the following issues:
22.1.1. The Regional Board's requirement for Chevron to
install the Dance Hall wellhead treatment system;
22.1.2. The City will install and operate its own GAC
treatment system;
22.1.3. The City will operate its own GAC treatment system at
least until the Regional Board determines that the operation of the GAC
treatment system is no longer necessary for the remediation of the 9-3417
Plume downgradient of Chevron Station No. 9-3417;
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22.1.4. In light of the City's GAC treatment system, Chevron
and the City jointly request that the Regional Board remove from the CAO
the IRAP requirements regarding the Dance Hall wellhead treatment
system and withdraw or rescind any Notice(s) of Violation issued to
Chevron related to the Dance Hall wellhead treatment system IRAP
requirements in the CAO; and
22.1.5. In light of the City's GAC treatment system, Chevron
and the City request that the Regional Board not require Chevron to
perform any other non -source area cleanup of the 9-3417 Plume.
22.2. Prior to the meeting with the Regional Board, the City and Chevron
will meet and confer regarding discussion points and jointly prepare an agenda
for the meeting.
23. Press Release And Media Inquiries
The Parties will jointly draft a press release about this settlement. The Parties
will cooperate to the extent reasonably possible in responding to any media inquiries
about this settlement and will rely primarily on the information in the jointly drafted press
release when responding to such media inquiries.
24. The City's Proposed "Chevron MtBE Water Commodity Surcharge"
The City will either: (a) not implement the proposed Chevron MtBE Water
Commodity Surcharge, or (b) remove Chevron's name from the surcharge so that it is
not associated with Chevron in any way. Any future surcharges, fees, or other
measures related to or caused by any matters or conditions covered by this Agreement
shall not bear Chevron's name or otherwise be associated with Chevron in any way.
25. Dispute Resolution
If any controversy or dispute arises between the Parties regarding this
Agreement, including, but not limited to, whether the conditions for disbursement from
the Escrow Account set forth in Section 16.2 above have been achieved, they agree to
the following procedures before pursuing any other remedy:
25.1. A meeting shall be held promptly between the Parties, attended by
individuals with decision-making authority regarding the dispute, who will attempt
in good faith to negotiate a resolution of the dispute.
25.2. If within fifteen (15) calendar days after the meeting, the Parties
have not succeeded in negotiating a resolution of the dispute, they agree to
submit the dispute to mediation using a mediator who is mutually acceptable, and
to bear equally the costs of the mediation. The Parties agree to participate in
good faith in the mediation process related to their dispute for a period of thirty
(30) calendar days from the commencement of mediation.
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25.3. Each Party's good faith participation in the procedures set forth in
this Section is intended to be and is a condition precedent to the right of each
Party to pursue the remedies set forth in this Section.
25.4. The Parties recognize that the above procedures will promote
settlement, and therefore, are of mutual benefit. Further, each Party understands
its obligations under the above procedures and intends such provisions be valid,
binding, enforceable, and irrevocable. Neither Party considers these obligations
to be vague or in any way unenforceable, and neither will contend to the contrary
in the future. Any attempt by a Party to circumvent and/or challenge its obligation
to follow the procedures set forth above shall be a considered a breach of this
Agreement, for which the non -breaching Party shall be entitled to recover in law
and/or equity.
26. Attorneys' Fees
The City and Chevron will each pay its own attorneys' fees incurred in connection
with the matters referenced in and covered by this Agreement.
27. Notice
Notice to any Party relative to this Agreement shall be made in writing and sent
to the address of the appropriate Party as set forth below. All such notices shall be
deemed to have been duly given and received upon mailing, facsimile, or delivery by
courier or personal delivery service. If a Party delivers a notice by means of facsimile
transmission, it must also send a copy of that notice by one of the other means
specified above. Parties may alter or modify their notice address by delivery of written
notice pursuant to the terms of this Agreement.
To Chevron: Natasha Molla
c/o Chevron Environmental Management Company
Marketing Business Unit
145 S. State College Blvd.
Brea, CA 92821-5818
Phone: (714) 671-3537
Fax: (714) 671-3440
E-mail: NatashaMolla@Chevron.com
With a copy to: Soniya Ziegler, Esq.
Chevron Law Department
Chevron Corporation
6111 Bollinger Canyon Rd., Suite 425
San Ramon, CA 94583
Phone: (925) 543-1718
Fax: (925) 543-2346
E-mail: sziegler@chevron.com
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To the City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Joe Tait, City Manager
Phone: (949) 443-6314
Fax: (949) 488-3874
E-mail: jtait@sanjuancapistrano.org
With a copy to: Omar Sandoval, Esq.
City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Phone: (949) 443-6312
Fax: (949) 488-3874
E-mail: OSandoval@SanJuanCapistrano.org
28. 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 any Party of any liability or an
admission of the existence of facts upon which liability could be based.
29. Governing Law
This Agreement shall be construed in accordance with and governed by the laws
of the State of California.
30. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
Agreement.
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31. Binding Effect
This Agreement is enforceable, admissible, and binding upon and shall inure to
the benefit of the Parties hereto and their respective predecessors, successors, parents,
subsidiaries, affiliates, Representatives (defined below), agents, officers, directors,
employees, and assigns.
32. Assignment
No assignment or other transfer of this Agreement shall be made by any Party,
except to an affiliate or subsidiary of such Party, without the prior written consent of the
other Party, which shall not be unreasonably withheld.
33. Ownership Of Claims
The City represents and warrants that no other person or entity has or has had
any interest in the City's Claims against Chevron and that the City has the sole and
exclusive authority to execute this Agreement and to receive the payment specified in
this Agreement. The City further represents and warrants that it has not sold, assigned,
transferred, conveyed, or otherwise disposed of any of the Claims within the scope of
this Agreement.
34. Confidentialit
34.1. Except as otherwise required by law or court order, or as mutually
agreed to by both Parties in writing, the Parties shall not, and shall cause each of
their directors, officers, employees, agents, attorneys, and representatives
(collectively, "Representatives') not to disclose the terms of this Agreement to
any person or entity other than the Representatives of the Parties that: (a) need
to know the terms of this Agreement for the purposes contemplated by this
Agreement; and (b) agree to be bound by the provisions of this Section.
34.2. Except as otherwise required by law or court order, or as mutually
agreed to by both Parties in writing, the Parties shall keep confidential any and all
communications and/or writings among and between the Parties and/or their
respective Representatives related to the negotiation and settlement of the
Parties' respective claims, rights, responsibilities, and/or obligations relating to
the City's Claims.
34.3. This Agreement does not prohibit the City from making any
disclosure required by law, including the Ralph M. Brown Act, codified as
California Government Code section 54950.5, et seg. (the "Brown Act"). The
City, on behalf of itself and its Representatives, agrees to provide Chevron at
least 72 hours notice prior to making any such disclosures. The City's failure to
provide Chevron such notice shall be considered a material breach of this
Agreement.
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34.4. The Parties will jointly draft a description of this Agreement which
the City will disclose in public session pursuant to California Government Code
section 54957.1(a)(3).
34.5. The Parties will promptly notify each other of any public inquiries
about this settlement and will rely primarily on the information in the jointly
drafted press release when responding to such public inquiries.
34.6. If the City receives a Public Records Act request for the Agreement
and/or its terms, the City shall notify Chevron within five (5) business days of
receipt of the request.
35. Entire Agreement; Amendments and Modifications
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. The Parties may agree to extend any of the deadlines set forth in
this Agreement by a written agreement prior to the expiration of the deadline.
36. Severability
If any provision or any part of any provision of this Agreement is determined to be
invalid or 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.
37. No Business Relationshi
Nothing contained in this Agreement shall be construed to constitute
the Parties as partners, joint ventures, co-owners, agents, or otherwise as
participants in a joint or common undertaking.
38. Headings
The subject headings of the Sections of this Agreement are used for
convenience only, and shall not affect the construction or interpretation of this
Agreement.
13
A/73510971.7/3005185-0000327923
CONFIDENTIAL SETTLEMENT COMMUNICATION
SUBJECT TO CALIFORNIA EVIDENCE CODE 1142
AND/OR FEDERAL RULE OF EVIDENCE 408
39. Warranty Of Authority
Each person signing this Agreement represents and warrants that he or
she has been duly authorized to enter into this Agreement by the company or entity
on whose behalf it is indicated that the person is signing. In entering this
Agreement, the Parties hereby warrant that they, and each of them, have done so
voluntarily and of their own accord without reliance on any inducement, promise, or
representation by the other Parties, except those which are expressly set forth
herein. Each Party has or has had an opportunity of procuring advice of
independent legal counsel of its, his, or her own choosing, and each has read this
Agreement and is fully aware of its contents.
IN WITNESS WHEREOF, the Parties hereto have accepted, made, and
executed this Agreement upon the terms, conditions, and provisions above stated as of
the Effective Date.
DATED: 71 I e-4 , , 2011
ATTEST
CITY OF SAN JUAN CAPISTRANO, a California
municipal corporaion
DATED:( , 2011 CHEVRON U.S.A. INC., a Pennsylvania corporation
By: G L
Na e: 0:
S
Title: �,I.��'G�d�l% o C* -6 Lei!%
14
A/73510971.7/3005185-0000327923
CONFIDENTIAL SETTLEMENT COMMUNICATION
SUBJECT TO CALIFORNIA EVIDENCE CODE & 1142
AND/OR FEDERAL RULE OF EVIDENCE 408
EXHIBIT A
DOCUMENTATION REGARDING THE CITY'S COMPLETION
OF THE CONSTRUCTION AND INSTALLATION OF ITS GAC TREATMENT SYSTEM
1. A sampling plan to demonstrate that, as required by the CAO, the water provided
from the GWRP has no detectable concentrations of fuel hydrocarbons, including
oxygenates such as MtBE.
2. A monitoring plan to demonstrate the effectiveness of the GAC treatment system.
3. A technical report, including schematics of the GAC treatment system, signed by
a California Professional Engineer certifying that the GAC treatment system is fully
operational.
A/73510971.7/3005185-0000327923
CONFIDENTIAL SETTLEMENT COMMUNICATION
SUBJECT TO CALIFORNIA EVIDENCE CODE § 1142
AND/OR FEDERAL RULE OF EVIDENCE 408
EXHIBIT B
DOCUMENTATION REGARDING THE CITY'S OPERATION
OF THE GAC TREATMENT SYSTEM FOR 12 MONTHS
Monthly and cumulative volumes of water treated by the GAC treatment system.
2. Monthly and cumulative volumes of water treated by the GAC per well.
3. Laboratory test results of samples collected as part of the sampling plan.
4. Records of carbon change -outs.
A/73510971.7/3005185-0000327923