04-057 Gibson Bakersfield de Minimis PRP Settlement
CONFIDENTIAL SETTLEMENT COMMUNICATION FRE 408, CAL. EV. CODE §1152
Exhibit 4
GIBBON BAKERSFIELD DE MINI111IS PRP SETTLEMENT AGREEMENT,
RELEASE AND INDEMNITY
This Gibson Bakersfield De Minimis Settle:ment Agreement ("Agreement") is between
the Gibson Group Trust, the Indemnitors and the I:.ndersigned Settling PRPs, as more fully
defined below (collectively "Parties").
Recitals and ]Definitions
A. The California Department of Toxic Substances Control ("DTSC") issued an
Imminent and Substantial Endangerment Determiliation and Order and Remedial Action Order,
Docket No. I & SE 99/00-002 on November 8, 19!9 (this Order and its subsequent amendments
shall be referred to collectively as the "DTSC Order"), directing various persons to perform
response actions (the "Work") relating to environmental conditions in soil and/or groundwater
(the "Contamination") at the former Gibson Envir~~nmental, Inc. facility located at 2401 Gibson
Street in Bakersfield, California (the "Site");
B. Several persons named in the DTSC OI•der, 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C. The agreement currently in effect, which superseded all previous agreements, is the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, t:he Cooperating Entities, other than the
California Department of Transportation ("CalTrans"), are also signatories 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 ~Jibson Group Trust alleges also sent waste to
the Site, giving rise to contribution claims pursuar.~t 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 "Contribution 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
Contribution Claims they may have against the Settling PRPs to the Gibson Group Trust, which
enters this Agreement pursuant to the authority pr~~vided to it by the Cooperating Entities
through the Stage II Agreement, the Trust Agreerr~ent and California law;
Therefore, the Parties mutually agree as follows:
GIBBON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT Page I of 6 May 5, 2004 330555_1
CONFIDENTIAL SETTLEMENT COMMUNICATION FRE 408, CAL. EV. CODE §1152
Exhibit 4
Agreelent
1. Counterpart Execution.
This Agreement maybe executed in counterparts, with the same effect as if all signatures
on such counterparts appeared on one document, ~;ach of which shall be deemed an original, but
all of which together shall constitute one and the :;ame instrument. Facsimiles of signatures shall
be considered originals. 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 ~~f 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 alter 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 Juno; 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.I>. 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 arbz.com). Regardless of how p;~yment is made, Settling PRPs shall provide
contemporaneous evidence of such payment via facsimile to LECG at the number indicated in
GIBBON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMI3NT Page 2 of 6 May 5, 2004 330555_1
CONFIDENTIAL SETTLEMENT COMMUNICE\TION FRE 408, CAL. EV. CODE §1152
Exhibit 4
paragraph 1 above ("Proof of Payment"). The Git~son 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 arising 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,
(ii) costs incurred in performing any other actions necessary to clean up the Contamination to the
satisfaction of any governmental environmental regulators who assert jurisdiction 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 criminal liability or (d) claims against a Settling PRP
arising out of any waste volume exceeding the am~~unt listed 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 Gib:~on 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; ChevronTexz~co; Dart Container Corporation; Delta Tech
Service, Inc.; Disneyland; The Fresno Bee; Los Aligeles County Metropolitan Transportation
Authority; Northrop Grumman Space & Mission Systems Corp; Oscar E. Erickson, Inc.; Pacific
Gas and Electric Company; Pacific Offshore Pipeline Co.; Peninsula Corridor 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, estate 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 imposing any obligations on Cooperating Entities who
GIBBON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT Page 3 of 6 May 5, 2004 330555_1
CONFIDENTIAL SETTLEMENT COMMUNICATION FRE 408, CAL. EV. CODE §1152
Exhil^~it 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 Indemnitors 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, has acted as counsel for any other
Party with respect to such other Party's entering ilito this Agreement, and each Party represents
that it has sought and obtained any appropriate independent legal advice prior to entering 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 i;~ 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 inlzre to the benefit of the Parties' successors and
assigns.
IN WITNESS WHEREOF, the Parties h;~ve executed this Agreement on the dates
indicated below.
Settlin PR:P
Print Entity Name: city of Cupertino
Print Name of Individual Signing on
Entit 's Behalf: ~
David W. Kna
Print Title of Individual Signing on
Entit 's Behalf:
City Manager
Si afore:
Date: ~o • ~.2-• ~
Print Entity's Address: 1Ci300 Torre Avenue
Cupertino, CA 95014
Print Entity's Facsimile Number: (~~08) 777-3333
GIBBON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMIiNT Page 4 of 6 May 5, 2004 330555_1
CONFIDENTIAL SETTLEMENT COMMUNICATION F1ZE 408, CAL. EV. CODE §1152
Exhibit 4
Gibson Grou Trust
Trustee Name Si nature Date
Jon Baldwin
Brenda
Manterola
Dave Roberson
Indf~mnitors
Enti Name Si nature Date Print Si ner's Name Print Title
Atlantic
Richfield
Com any
ChevronTexaco
Dart Container
Corporation
Delta Tech
Service, Inc.
Disneyland
The Fresno Bee
Los Angeles County
Metropolitan
Transportation
Authori
Northrop
Grumman Space
& Mission
S stems Co
Oscar E.
Erickson, Inc.
Pacific Gas and
Electric
Com any
GIBBON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMErIT Page 5 of 6 May 5, 2004 330555_1
CONFIDENTIAL SETTLEMENT COMMUNI(~ATION FRE 408, CAL. EV. CODE §1152
Exhibit 4
Indfemnitors
Enti Name Si nature Date Print Si ner's Name Print Title
Pacific
Offshore
Pi eline Co.
Peninsula
Corridor 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 Com any
Southern
California Gas
Com an
Sunquest
Properties, Inc.
Tidelands Oil
Production
Com any
Ultramar, Inc.
Union Oil --
Company of
California
GIBBON BAKERSFIELD DE MINIMIS PRP SETTLEMENT AGREEMENT Page 6 of 6 May 5, 2004 330555 1