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HomeMy WebLinkAboutAgr 2016-02-25 (Union Pacific Railroad)TOWN OF TIBURON — 1505 Tiburon Boulevard Tiburon, CA 94920 Town Council Meeting February 17, 2016 Agenda Item: STAFF REPORT To: From: Subject: Reviewed By: Mayor and Members of the Town Council Office of the Town Attorney Recommendation to Execute Settlement Agreement between Union Pacific Railroad Company and the Town of Tiburon , BACKGROUND In 2013, the Town received a claim from Union Pacific Railroad Company ("UP") alleging damages in the form of soil contamination at the Stege Pistol Range allegedly caused, in part, by the Town's past use of the site. Several public entities throughout the Bay Area received similar claims from UP. The Town joined with other Bay Area cities and engaged in protracted negotiations with UP to settle these claims, and a global settlement between UP and the involved Bay Area cities was reached in September 2015. Each city's portion of this global settlement has been determined based on that city's size and history of use of the pistol range facility, with payments ranging from $21,818 to $46,363. The Town's share of the settlement payment is the lowest at $21,818. In the proposed Settlement Agreement between the parties, the Town has agreed to pay UP a total of $21,818 in exchange for a full release and settlement of all claims. If this Settlement Agreement is approved by the Council, payment of the $21,818 will be submitted to UP within 30 days of execution of the Settlement Agreement. RECOMMENDATION Staff recommends that the Town Council: Authorize the Town Manager to execute the Release and Settlement Agreement between Union Pacific Railroad Company ("UP") and the Town of Tiburon ("Town") which resolves all present and future property damage claims related to alleged contamination of the Stege Pistol Range resulting from the Town's past use of the site. Exhibit: Prepared By: Release and Settlement Agreement between Union Pacific Railroad Company and the Town of Tiburon Benjamin Stock, Town Attorney TOWN OF TIBURON PAGE 1 OF 1 RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement (hereinafter "Settlement Agreement") is made and entered into by and between the Town of Tiburon (hereinafter referred to as the "Settling Party") and Union Pacific Railroad Company, a Delaware corporation ("UP") (referred to hereinafter collectively as the "Parties" and individually each as a "Party") as of the date of the last signature below ("Effective Date"). WHEREAS, UP is the current owner of certain real property commonly known as the former Stege Pistol Range in Richmond, California, as more specifically identified in the map attached hereto as Exhibit A (the "Range"); WHEREAS, UP has asserted that Settling Party and other public and private entities used the Range for target practice from approximately the early 1980s to 1997 (collectively the "Range Users"); WHEREAS, pursuant to the direction of the California Department of Toxic Substances Control ("DTSC"), UP, through its consultants, has investigated and monitored environmental contamination at the Range, including, but not limited to, lead contamination, and any other soil and/or groundwater contamination at, under, in or migrating from the Range that is: (1) related to or caused by any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. section 9601, et seq., ("CERCLA"); the Hazardous Materials Transportation Act, 49 U.S.C. section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. section 6901, et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. section 2601, et seq.; the Clean Water Act, 33 U.S.C. section 1 1251, et seq.; the California Hazardous Waste Control Act, Health and Safety Code section 25100, et seq.; the California Hazardous Substance Account Act, Health and Safety Code section 25300, et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code section 25249.5, et seq.; California Health and Safety Code section 25280, et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code section 25500, et seq. (Hazardous Materials Release Response Plans and Inventory); or the Porter Cologne Water Quality Control Act, California Water Code section 13000, et seq.; all as amended; or any other federal, state or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (2) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court; (3) petroleum and its fractions, crude oil, and other petroleum products; and (4) radioactive materials including naturally occurring radioactive materials, (collectively the "Contamination"); WHEREAS, UP has conducted a remedial investigation and prepared a feasibility study for the remediation and/or removal of the Contamination which is set forth in the Remedial Action Work Plan (the "RAW") that has been made available for public comment on or about January 2, 2013; WHEREAS, UP completed the performance of the RAW and on February 12, 2015, DTSC approved and certified that the work has been completed; 2 WHEREAS, UP has claimed that Settling Party is liable to UP for the past and future costs of investigating and remediating the Range and has demanded, inter alia, that Settling Party indemnify UP for its past and future costs; and WHEREAS, UP and Settling Party have reached a resolution of such claims and demands as provided below. NOW THEREFORE, with the acknowledgment that this Settlement Agreement has been negotiated in good faith, and in recognition of the obligations, covenants and other good and valuable consideration contained herein, the Parties agree as follows: SECTION I. PARTIES BOUND 1.0 This Settlement Agreement applies to, is binding upon, and shall inure solely to the benefit of the Parties, the Settling Party's police department and their predecessors and successors. SECTION II. PAYMENT OF CASH 2.0 No later than 30 days from the Effective Date, Settling Party shall make a payment of Twenty One Thousand Eight Hundred Eighteen Dollars ($21,818) by wire transfer (with instructions to be provided by Greenberg Glusker upon request), or by delivery of a check to the office of Greenberg Glusker at 1900 Avenue of the Stars, Suite 2100, Los Angeles, CA 90067, payable to Greenberg Glusker Fields Claman & Machtinger LLP Client Trust Account. 3 SECTION III. REMEDIATION 3.0 UP shall continue to perform all investigation and monitoring of the Contamination at the Range (including, but not limited to, any contamination of soil, soil vapor, or groundwater, relating to, arising from or emanating from, the Contamination on the Range) and any investigation, remediation or removal and related activities (including, without limitation, the performance of the RAW and any changes or amendments thereto) required by DTSC or any other agency which has jurisdiction with respect to the Contamination at the Range (the "Agencies") in order to obtain a "No Further Action" letter(s) (or its equivalent) for the Range from DTSC, or other Agencies (all such work shall be referred to collectively as "Remediation Work"). UP shall also perform all monitoring, post -closure maintenance or any additional investigations or remediation that may be required by the Agencies in the No Further Action letter(s) or in any subsequent notification(s) with respect to the Contamination at the Range at any time and for any reason ("Post -Closure Work"). For purposes of this Agreement, all Remediation Work and Post -Closure Work shall be referred to herein as "Response Action." Nothing herein shall affect UP's rights and remedies to recover its past and future costs in performing the Response Action from parties not bound by this Agreement. SECTION IV. RELEASES AND COVENANTS NOT TO SUE 4.0 In consideration of the receipt of the settlement payment in Section 2.0 and other Settling Party obligations herein, UP hereby releases, discharges and covenants not to sue Settling Party from, against and for any claim, cause of action, damages, costs, attorneys' fees, fines or penalties in connection with, or arising, in any way, out of (1) the Response Action or any other investigation, assessment, remediation, or removal in connection with the 4 Contamination and/or the Range, including but not limited to, any past or future response costs in connection with same; (2) any diminution in value or loss of use related to the Contamination; and (3) any alleged bodily injury or property damage arising from or related to the Response Action and/or exposure to the Contamination that takes place at the Range. Settling Party understands and agrees that this release does not include a release of any contractual duty or obligation assumed under this Settlement Agreement. This release does not apply to any claims for bodily injury or property damage asserted by third parties based on exposure to the Contamination that takes place off of the Range. 4.1 In further consideration of the receipt of the settlement payment in Section 2.0 and other Settling Party obligations herein, UP shall indemnify and defend Settling Party (1) from any lawsuit or order asserted by Agencies seeking to recover response costs and/or requiring Settling Party to undertake a Response Action that arises out of the Contamination at the Range; and (2) from and against any lawsuit or cross-claim for contribution, indemnity, response costs, nuisance, trespass, negligence (or any other property damage claim), injunctive or declaratory relief brought against Settling Party in connection with the Response Action ("Cross -Claim"). UP's obligation to indemnify and defend a lawsuit, order or Cross -Claim under this paragraph shall only be triggered by the actual filing of a lawsuit, Cross -Claim or issuance of an order, and shall not cover any internal costs of Settling Party arising from said lawsuit, Cross -Claim or order. Settling Party's defense shall be provided by counsel selected by UP. As a condition precedent to UP's obligations under this paragraph, Settling Party must provide written notice within ten (10) days of actual notice, receipt or service (whichever is sooner) of any lawsuit or Cross -Claim and twenty (20) days of actual notice of any order. UP shall have no obligation for any costs or obligations incurred by Settling Party in response to a 5 Cross-Claim, order or lawsuit without the written consent of UP. This indemnity shall not apply to any third-party claims, demands or lawsuits for bodily injury. 4.2 In consideration of UP's obligations herein, Settling Party hereby releases, discharges and covenants not to sue UP, its employees, agents, predecessors, successors and assigns, other Range Users, or any other parties responsible for or liable for the Contamination at the Range (except for Settling Party's insurers), from, against and for any claim (including subrogation claims), loss, liability or damages relating to (1) any lawsuit or order asserted by Agencies seeking to recover response costs and/or requiring Settling Party to undertake a Response Action that arises out of the Contamination at the Range; (2) any lawsuit or cross- claim for contribution, indemnity, response costs, nuisance, trespass (or any other property damage claim), injunctive or declaratory relief brought against Settling Party in connection with the Response Action; and, (3) Settling Party's payment of cash under Section 2.0.. UP understands and agrees that this release does not include a release of any contractual duty or obligation assumed under this Settlement Agreement. With the exception of any claim relating to Settling Party's payment of cash under Section 2.0, which is covered by this release, UP further understands and agrees that Settling Party will not release, does not release, and this release does not apply to, any claim, cause of action, damages, costs, attorneys' fee, fines or penalties that is/are not covered by UP's indenuuty obligations in Section 4.1. This release does not apply to any third-party claims, demands or lawsuits for bodily injury. 4.3 Settling Party and UP agree to reasonably cooperate with one another should UP seek a judicial determination that this Settlement Agreement was entered into in good faith and constituted a fair share payment in any litigation wherein UP seeks contribution protection 6 for Settling Party, a good faith settlement determination, a fair share determination or similar procedure for protection against a Cross -Claim. 4.4 The Parties understand and agree that this Settlement Agreement is a full and final release applying to all unknown, unsuspected, unasserted and unanticipated claims, liabilities, losses, demands, rights or causes of action with respect to the matters released above. The Parties warrant that each explicitly took this into account in determining the consideration for the giving of this release, and a portion of said consideration, having been bargained for between the Parties with the knowledge of the possibility of such unknown, unsuspected, unasserted and unanticipated claims, was given in exchange for a full accord, satisfaction and discharge of all such claims. The Parties expressly waive all rights under California Civil Code section 1542 which provides: 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. SECTION V. NO ADMISSIONS 5.0 Entering into this Settlement Agreement, and any conduct of any Party in executing and implementing the terms of this Settlement Agreement, shall not constitute or be used as evidence of any admission of liability on any issue of fact or law or any admission of fact or law by any Party or by any other person or entity not a Party, except as to the obligations expressly assumed herein. This Settlement Agreement may not be used in any fashion or be admitted as evidence in any subsequent legal proceeding, except that this Settlement Agreement may be used as evidence against a Party in a legal proceeding brought 7 by another Party to enforce the terms of and the obligations and responsibilities contained in this Settlement Agreement. SECTION VI. NO MODIFICATION 6.0 No modification shall be made to this Settlement Agreement unless in writing and executed by all Parties. SECTION VII. ENTIRE AGREEMENT 7.0 This Settlement Agreement constitutes the entire understanding of the Parties with respect to this Settlement Agreement's subject matter and supersedes any and all other agreements and negotiations, whether oral or in writing, with respect to this Settlement Agreement's subject matter. SECTION VIII. NO THIRD PARTY BENEFICIARIES 8.0 Except as provided in Section 1.0, this Settlement Agreement is not intended to confer rights, benefits or obligations upon any person or entity except the Parties herein. SECTION IX. CHOICE OF LAW AND DISPUTE RESOLUTION 9.0 This Settlement Agreement shall be governed and construed in accordance with the substantive laws of the State of California without reference to principles of conflicts of law. 8 SECTION X. NO ASSIGNMENT 10.0 Each of the Parties has entered into this Settlement Agreement in reliance on the ability of the other Parties to carry out the obligations herein. Accordingly, the obligations under this Settlement Agreement may not be assigned or transferred without the written consent of the other Party which may be withheld in that Party's sole and absolute discretion. SECTION XL COUNTERPARTS 11.0 This Settlement Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall constitute one and the same instrument. When signed, the Parties shall serve signature pages on all other Parties by overnight mail, Federal Express overnight or equivalent service. SECTION XII. WARRANTY 12.0 Each of the Parties hereby warrants and declares that this Settlement Agreement is executed and delivered voluntarily, without any duress of any type or nature whatsoever, whether economic or otherwise, or undue influence or misrepresentation by any of the Parties, their agents or attorney. Each of the Parties and signatories to this Settlement Agreement warrant that they have the requisite authority to execute this Settlement Agreement and bind the Parties on whose behalf they are signing. Each of the Parties agrees that this Settlement Agreement is supported by contemporaneous, fair and legally sufficient consideration, including, without limitation, the forbearance of legal rights and remedies, compromise of claims, releases, indemnities, and covenants contained herein. 9 SECTION XIII. ADVICE OF COUNSEL 13.0 The Parties acknowledge that they have (a) had an equal role in drafting this Settlement Agreement, (b) read each of the provisions of this Settlement Agreement and understand the same, and (c) signed this Settlement Agreement of their own volition based upon the explicit advice of their counsel. Because each of the Parties has participated in drafting this Settlement Agreement, there shall be no presumptions in interpretation and construction against any Party on the ground that such Party was responsible for preparing the Settlement Agreement or any part of it. IN WITNESS WHEREOF, the Parties enter into this Settlement Agreement. Each person signing this Settlement Agreement represents and warrants that he or she has been duly authorized to enter into this Settlement Agreement by the Party on whose behalf it is indicated that the person is signing. UNION PACIFIC RAILROAD TOWN OF TIBUR COMPANY Dated: Greg 11 Fis, Town Manager 01A72Sjib Date Approved as to Form: .---Benjamin /Stock, Town Attorney Dated: .;;VZ -0/ 10 loQ1e r „14e44ooci Former,,Pistol,Range is do Fid hc�sCO.e 8y rre,1 San Francisco Bay Sourcel Esri, i -cubed, USDA, ASaS ,AEX, GeoEye, Getm_ apping, "`Aerogrid, IGN, IGP,jand IS 1]ser•Community LEGEND n Former Pistol Range 0 iso 700 I I I Feet VICINITY MAP Project Area et o-Av El Cern to •�� • tl ese1 61 • C 11; laza laza — Sources: Esri, DeLarme; NAVTEQ, ToinTom, Intermap, increment P Corp., GE61CO, cf b f Pistol Range Location Map UNK 11ZINFANDELIPROJIUN IONPACIFIC RAILROAD1240167RICHMOND16.0 LABORATORY DATAIGISIMAPFILES12012\FIG 1-1 _BLAIRSOLO MXD ECLARKI 3122/2013 9:16:06 AM EXHIBIT A