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HomeMy WebLinkAboutResolution - 2006-R0340 - Release And Settlement Agreement - Stauffer Management Co., LLC - 07/10/2006Resolution No. 2006-RO340 July10, 2006 Item No. 5.24 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Release and Settlement Agreement between the City of Lubbock and Stauffer Management Company LLC, and Bayer CropScience USA Inc., successor by merger to Stauffer Chemical Company, and any other related documents. Said Release and Settlement Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 10th day of July 2006. DAVID A. MILLER, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Deputy City *pager APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney mlfccdocsi Stauffer Settlement Agree res June 30. 2006 Resolution No. 2006-RO340 July10, 2006 Item No. 5.24 RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is effective this 10th day of July 2006. This Agreement is made and entered into by and between Stauffer Management Company LLC ("SMC'), Bayer CropScience USA Inc., successor by merger to Stauffer Chemical Company, ("Bayer") and the City of Lubbock ("City"). BACKGROUND A. SMC owns a tract of land located at 2601 North Quaker Avenue, Lubbock, Texas 79415 (the "Property"). The Property is a former Stauffer Chemical Company warehouse and distribution facility that operated between the early 1950s and 1986. B. On May 24, 1954, Stauffer Chemical Company granted a Permanent Water Pipe Line Easement to the City (the "Easement"). The Easement is recorded in the Lubbock County property records at volume 540, page 527. A copy of the Easement is attached as Exhibit A. On or around 1955, the City installed a water line through the Easement. C. SMC discovered impacted soil and groundwater on and around the Property and enrolled the Property in the Texas Voluntary Cleanup Program ("VCP"). Impacted soil and groundwater are present along a portion of the Easement. D. As part of its remedy to close the Property under the VCP, SMC intends to install a low - permeability multi -layered engineered cover ("Cap") over the Property, including the Easement (the "Cap"). This remedy has been approved by the Texas Commission on Environmental Quality. E. The City contends that SMC should remove the impacted soil in the Easement and modify the Cap design so that it does not cover the Easement. SMC contends that soil removal is not necessary and that such removal could adversely affect the integrity of the water line. F. City and SMC have resolved all matters and claims in dispute arising from or relating to the impacted areas in the Easement and have set forth the terms of their settlement below. NOW, THEREFORE, in consideration of the money to be paid and the promises made herein, the parties agree as follows: 1. Payment to Citv. Upon the execution of this Agreement, SMC will pay to the City the sum of $228,850.00 for costs or damages incurred by the City now relating to the environmental condition of the Easement. 2. Release of SMC and Bayer. On behalf of itself, its agents, representatives, insurers, successors in interest, and assigns, the City, subject to the limitations below, fully and finally and forever releases, acquits and discharges SMC and Bayer and their related entities, both parent company and affiliates, predecessors, successors, assigns, officers, directors, stockholders, shareholders, attorneys, representatives, agents and employees, past, present and future, and all other persons and entities for whose acts or omissions SMC or Bayer could be held legally responsible ("Released Parties"), from any and all claims, suits, damages and causes of action of whatever nature and kind, including without limitation all claims for personal injury, emotional distress, property damages, trespass, nuisance, negligence, response or investigation costs, and/or economic loss, including diminution in real property value, stigma damages, any claims for attorneys' or consultants' fees and any other claims, demands, damages, losses or causes of action of whatever kind or nature which the City ever had, now has or may have on account of or arising from the alleged contamination of the Easement, whether at law or in equity, whether under state or federal law or regulation, whether known or unknown, whether suspected or unsuspected without any limitation or restriction whatsoever, except (1) actions or claims to enforce the terms of this Agreement and (2) actions or claims by the City against the Released Parties for contribution or cost recovery arising from or related to any action or claim asserted by any third party against the City and relating to the environmental condition of the Easement or damages, costs or liabilities alleged to arise therefrom, to which are expressly not released by City or otherwise affected by this Agreement. 3. Repair of The Cap If the City, in its determination, needs to access the water line in the Easement to perform maintenance, repair or inspections, it may excavate the portion of the Cap necessary to conduct such maintenance, repair or inspections (the "Work"). SMC, at its own expense, will repair the Cap once the Work is completed. The City shall notify SMC within 24 hours after the start of the Work. Once the Work is completed, the City shall notify SMC in writing via telecopy no more than 1 day after the completion, so that SMC can promptly repair the Cap. 4. Notice. All notices to SMC required under this Agreement shall be made to: Mr. Brian Spiller Stauffer Management Company, LLC 1800 Concord Pike P.O. Box 15437 Wilmington, DE 19850-5437 Telephone: 302-886-5501 Fax: 302-886-5933 5. This Agreement represents a compromise settlement of a disputed claim and is not and shall not be construed as an admission of any issue of fact or law or as an admission or adjudication of any liability and shall not be admissible in any other suit or proceeding. -2- 6. This Agreement is binding upon and inures to the benefit of City, SMC and Bayer and their respective heirs, executors, administrators, personal representatives, successors, transferees and assigns. 7. This Agreement constitutes the parties' entire agreement on this subject. There are no written or oral representations or understandings that are not fully expressed in this Agreement. No change, waiver, or discharge is valid unless in writing and signed by the party against whom it is sought to be enforced. 8. City, SMC and Bayer acknowledge that this Agreement has been negotiated at arm's- length and therefore agree that any rule of construction of contracts resolving any ambiguities against the drafting party is waived and shall be inapplicable to this document. 9. The waiver of any breach of any term or condition of this Agreement does not waive any other breach of that term or condition or of any other term or condition. 10. This Agreement must be construed — and its performance enforced — under Texas law. Venue for any action concerning, arising from or related to this Agreement shall lie solely in the courts of competent jurisdiction in Lubbock County, Texas. 11. This Agreement, executed in duplicate originals, shall be effective on the date first written above. 12. Each person executing this Agreement represents that the party on whose behalf the person is executing this Agreement has duly authorized the execution of this Agreement and that such person is authorized to execute the Agreement on behalf of such party. ATTEST: Garza, City Secretary APPROVED AS TO CONTENT: CITY OF LUBBOCI By. DAVID A—MILLER, MAYOR -3- Thomas Adams, Deputy City Manager APPROVED AS FO Richard K. Casner, First Assistant City Attorney -4- STAUFFER MANAGEMENT COMPANY LLC Its: -5- -5- DALLAS 1667794v2 BAYER CROPSCIENCE USA INC., SUCCESSOR BY MERGER TO STAUFFER CHEMICAL COMPANY By�i Its: -6-