HomeMy WebLinkAboutAgreement A-19-518 with Dow Chemical Company & Shell Oil Company.pdf - 2 -
7. Release. Subject to the provisions of this Agreement, on behalf of itself, its
predecessors, successors, assigns, representatives and past, present or future agents, Claimant
hereby releases Settling Parties, Dow’s subsidiary known as “Dow AgroSciences LLC,” and
their product distributors – i.e., Wilbur-Ellis Company LLC, Occidental Chemical Corporation,
Occidental Petroleum Corporation, J.R. Simplot Company, PureGro Company, Nutrien Ag
Solutions, Inc. (fka “Crop Production Services, Inc.”), Chevron U.S.A. Inc., Trical, Inc. and
FMC Corporation - and any and all past, present and future parents, subsidiaries, members,
domestic and foreign corporations, divisions, affiliates, partners, joint ventures, stockholders,
predecessors, successors, assigns, insurers, officers, directors, employees, attorneys, agents,
representatives, and any other person, firm or corporation with whom they have been, are now,
or may hereinafter be affiliated (collectively, “Released Parties”) from any and all claims,
demands, actions, causes of action, obligations, liens, damages, and liabilities of any nature
whatsoever, whether or not known, suspected or claimed, past, present or future, relating to or
arising out of any act, cause, matter or thing stated, claimed, or alleged, or that could have been
stated, claimed or alleged by Claimant against the Released Parties, including but not limited to
all allegations associated with TCP or TCP-containing products manufactured, marketed,
distributed, sold, applied, released, discharged and/or disposed of by the Released Parties, related
to any past, present, continuing and/or future presence of TCP or any other contamination from
TCP-containing products in the past, present or future wells of FSCA 14 (“Released Claims”).
8. California Civil Code Section 1542. Each Party acknowledges that it is familiar
with the terms of California Civil Code Section 1542, which reads:
“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.”
Claimant hereby waives the provisions of Section 1542 and releases and relinquishes any rights it
may have under that section or any similar law and the application of said Section or law to any
future disputes with respect to the Claimant’s Released Claims in paragraph 7 above. Settling
Parties, and each of them, hereby waive the provisions of Section 1542 and release and relinquish
any rights they may have under that section. Each Party acknowledges that before executing this
waiver it was fully advised by legal counsel about the effects of waiving the provisions of, and its
rights under, Civil Code Section 1542.
9. Third-Party Interests. Claimant declares and warrants that, to the best of its
knowledge, no other person or entity has had or now has any interest in the Claimant’s Released
Claims released in paragraph 7 above; and that Claimant has not sold, assigned, transferred,
conveyed, or otherwise disposed of any Released Claim released in paragraph 7 above. Claimant
hereby agrees to indemnify and hold harmless each Released Party for any attorneys’ fees, costs,
damages, or other injury incurred as a result of the assertion by a third party of a Released Claim
released in paragraph 7 above. Claimant further agrees that it is solely responsible to satisfy or
otherwise resolve any and all claims or liens for attorneys’ fees or costs asserted in the Pending
Action and Claimant agrees to indemnify and hold harmless each Released Party for any such
claims or liens. Notwithstanding any other provision set forth herein, Claimant shall have no
obligation to indemnify and/or hold harmless any Released Party for any attorneys’ fees, costs,
- 3 -
damages, or other injury incurred as a result of the assertion by a third party of any claim for
damages, including but not limited to personal injuries or property damage, allegedly caused by,
based on or related to the presence of TCP in water the claimant allegedly consumed, purchased
or to which they were otherwise exposed.
10. Voluntary and Good Faith Agreement. The Parties, and each of them, declare
that, prior to execution of this Agreement, each has apprised itself of sufficient data, either
through experts or other sources of its own selection, in order that it might intelligently exercise
its judgment in deciding on the contents of this Agreement and in deciding whether to execute it.
The Parties acknowledge that they have an understanding of the facts underlying the Pending
Action and this Agreement, and have negotiated in good faith, and that this Agreement
represents a good faith settlement with regard to the interests of all Parties to the Agreement.
11. Entire Agreement. This document embodies the entire terms and conditions of
the Agreement between the Parties, and supersedes any prior agreements, understandings and
documents exchanged and/or signed by the Parties in the course of resolving Claimants’ claims
against the Released Parties that are, or could have been, alleged in the Claim. All words,
phrases, sentences, and paragraphs, including the recitals hereto, are material to the execution of
this Agreement. This Agreement may not be altered, amended or modified in any respect other
than by way of a writing duly executed by all Parties.
12. Binding Agreement. This Agreement shall bind the Parties and each successor
and assign of each Party.
13. Governing Law. This Agreement shall be governed by, and interpreted and
construed in accordance with, the laws of the State of California.
14. Mediation of Disputes. If any dispute arises out of this Agreement that the
Parties are unable to resolve among themselves, the Parties agree to first attempt to resolve the
dispute through mediation. For purposes of mediation, the Parties agree to use JAMS, or another
mutually agreed-upon mediator. If any Party is found to be in default with respect to this
Agreement, and any other Party shall incur expenses, fees and costs or employ legal counsel to
make any demand or to otherwise protect or enforce its rights under this Agreement, the Party in
default shall pay all such costs and expenses incurred by the other Party, including court costs
and reasonable attorneys’ fees.
15. Notices. All notices, documents, and other papers required to be served pursuant
to this Agreement and correspondence shall be sent to the following addresses, or such other
addresses as counsel may provide:
For the County of Fresno: Daniel C. Cederborg, Esq.
County Counsel
Fresno County, California
2220 Tulare Street, Suite 500
Fresno, CA 93721
For The Dow Chemical Company: Nicholas D. Kayhan, Esq.
- 4 -
King & Spalding LLP
101 Second Street, 23rd Floor
San Francisco, CA 94105
For Shell Oil Company: Jay E. Smith, Esq.
Steptoe & Johnson LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
16. Construction. This Agreement shall not be construed against the party or parties
whose attorney(s) drafted this Agreement or any portion hereof.
17. Severability. In the event that any of the terms, conditions, or covenants
contained in this Agreement are held to be invalid, then any such invalidity shall not affect any
other terms, conditions, or covenants contained herein, which shall remain in full force and
effect.
18. Authorization. Each of the signatories to this Agreement warrants that he or she
is fully authorized to enter into the terms and conditions stated herein and to execute this
Agreement.
19. Counterparts. This Agreement may be executed in counterparts, and all
counterparts so executed shall be deemed to be one and the same instrument, binding on all of
the Parties hereto, notwithstanding that all of the Parties are not signatories to the original or the
same counterparts. Signatures for such counterparts may be obtained by facsimile or electronic
transmission. For all purposes, executed pages of the counterparts may be assembled as one
document.
20. Expenses, Fees, and Costs. The Parties to this Agreement shall bear all of their
own expenses, fees, and costs related to the Claim.
21. Confidentiality: The Parties and their counsel of record agree not to disclose the
terms of this Agreement, except that disclosure shall be permitted as follows:
a. in any proceeding to enforce the terms of this Agreement;
b. to the extent the disclosing Party is required to do so under the law,
including but not limited to the California Public Records Act (California Government
Code, § 6250 et seq.) and the Ralph M. Brown Act (California Government Code, §
54950 et seq.), or by court order;
c. by the Parties to their respective insurers, auditors, financial consultants,
attorneys, or lenders, provided, however, that the person(s) to whom this information is
disclosed pursuant to this subparagraph “c” shall be advised that this Agreement is
confidential, and the Parties agree to use reasonable efforts to have such person(s) agree
to be bound by such confidentiality; and
- 6 -
EXHIBIT A
The incoming wiring information for the County of Fresno general account is:
Bank Name: Bank of the West
Bank Address: 2035 West Fresno Street, Fresno, California 93721
ABA / Routing #: 121100782
BIC / SWIFT Code: N/A
Beneficiary Name: For the Account of Treasurer of Fresno County
Beneficiary Account #: 097000970
Memo: County of Fresno FSCA 14