HomeMy WebLinkAbout2007-03-23; City Council; Resolution 2007-0631 RESOLUTION NO. 2007-063
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING PAYMENT OF
3 OMEGA CHEMICAL SUPERFUND SITE CLEANUP COSTS
4 PURSUANT TO THE SETTLEMENT AGREEMENT
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WHEREAS, on August 27, 2002 the City of Carlsbad was informed by the United
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States Environmental Protection Agency, that it has been identified as a contributor of
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hazardous substances to the contaminated Omega Chemical Superfund Site: and8
WHEREAS, the City was determined to be a de minimus contributor of 5.1362
10 tons.
11 WHEREAS, at the closed sessions of September 14, 2004 and June 14, 2005
12 Council agreed to settle the City's liability in a multi-party settlement agreement
13 attached hereto as Exhibit "A", which was approved by the US District Court on March
14 9, 2007: and
WHEREAS, pursuant to that settlement agreement the City is now obligated to
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pay its fair share of the site cleanup costs in the amount of $33,642.11.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
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Carlsbad, California, as follows:
20 1 - That the above recitations are true and correct.
21 2. That the City Council authorizes payment to Omega Chemical PRP
22 Group, LLC in the amount of $33,642.11, as provided for in Article VII, section 7.04 of
23 the Settlement Agreement.
24 3. That the City Council authorizes the Finance Director to appropriate the
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payment from the Solid Waste Fund's contingency and make the payment no later than
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April 8, 2007.27
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 20th day of March, 2007, by the following vote:
AYES: Council Members Lewis, Hall, Packard.
NOES: None.
ABSENT: Mayor Pro Tem Kulchin.
Mayor
ATTEST:
LORRAINE M. WOOD, city cierk
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Tttnttefr &tate* Btetrict Court
Central Btetrict of California
Western BiW*ion
OMEGA CHEMICAL PRP GROUP LLC,etal.,
Plaintiffs,
V.
AEROSCIENTIFIC CORP., et a/.,
Defendants.
CV 04-01340 TJH (JWJx)
The Court has considered Plaintiffs motion for good faith settlement as to the
55 settling Defendants, together with the moving papers.
It I* Orfcttefr that the motion be, and hereby is, 6tautt&.
--— -^"rrfrrWcTr"
It is f ttfthi t vttiittilrtHat thelsett ements were entered into in good faith,
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RightFAX 3/12/2007 12:51 PAGE 003/003 Fax Server
and that all claims for contribution against the 55 settling Defendants be, and hereby
are, Satttd except to the extent that such claims are preserved by the settlement
agreement.
It ig futtftet Orttteft that the Court shall retain jurisdiction to enforce the
terms of the settlement agreement.
Date: March 9, 2007
Cttt0 I. 3&ait&, Jt.
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Order - Page 2
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
TABLE OF CONTENTS
Page
Section 1.01 Agreement 1
Section 1.02 Consideration 1
Section 2.01 "Affiliated Parties" 1
Section 2.02 "Agreement" 2
Section 2.03 "Settling Party" 3
Section 2.04 "Claims or Claims and Liabilities" 2
Section 2.05 "Consent Decree or Other Agreements" 2
Section 2.06 "DTSC" 2
Section 2.07 "Effective Date" 2
Section 2.08 "EPA" 2
Section 2.09 "Excluded Matters" 2
Section 2.10 "Governments" 2
Section 2.11 "OPOG" 2
Section 2.12 "OPOG Members" 3
Section 2.13 "Omega Site Settlement Escrow" 3
Section 2.14 "Party" 3
Section 2.15 "PRPs" 3
Section 2.16 "Regional Response Work" 3
Section 2.17 "Settlement Amount" 3
Section 2.18 "Site" and "Omega Site" 3
Section 2.19 "State" 3
Section 2.20 "Total Collective Costs" 3
Section 2.21 "United States" 4
Section 3.01 Funding and Work Arrangements 4
Section 3.02 Consent Decree or Other Agreements 4
Section 3.03 Settling Party's Representations Regarding Disclosures 5
Section 4.01 Judicial Approval of Settlement 5
Section 5.01 Releases for Settled Matters 6
Section 5.02 Excluded Matters 6
Section 5.03 Right of Additional Recovery 7
OMEGA CHEMICAL SITE
TABLE OF CONTENTS
I
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
TABLE OF CONTENTS
Section 5.04 Civil Code Section 1542 7
Section 6.01 Less Than Full Compensation 8
Section 6.02 Claims for Settled Matters 8
Section 6.03 No Prior Assignment 8
Section 6.04 Assignor's Cooperation 8
Section 7.01 Effect of Agreement; Separate Agreements 9
Section 7.02 Survival of Agreement 9
Section 7.03 No Admission of Liability 9
Section 7.04 Notice 9
Section 7.05 Remedies 10
Section 7.06 Enforcement of Agreement 10
Section 7.07 Construction of Agreement 10
Section 7.08 Independent Counsel 10
Section 7.09 Deadlines 11
Section 7.10 Sole Agreement 11
Section 7.11 Amendment to Agreement 11
Section 7.12 Corporate Authority 11
Section 7.13 Binding 11
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
- SETTLING PARTIES WITH RE-OPENER AND SETTLEMENT AMOUNTS
SETTLING PARTIES WITHOUT RE-OPENER AND SETTLEMENT AMOUNTS
CERTIFICATION BY SETTLING PARTIES
- OPOG MEMBERS MAKING OPOG MEMBERS ASSURANCE
OPOG MEMBERS ASSURANCE
AUTHORITY TO EXECUTE SETTLEMENT AGREEMENT AND MEMBERS
ASSURANCE
EXHIBIT G - AMENDMENT TO OMEGA PRP GROUP PARTICIPATION AGREEMENT
OMEGA CHEMICAL SITE
TABLE OF CONTENTS
2
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
ARTICLE I.
INTRODUCTION
Section 1.01 Agreement.
This Omega Chemical Site Settlement Agreement, including any Exhibits hereto,
("Agreement") is made and entered into as of the Effective Date by and between the Omega
Chemical PRP Organized Group, also known as the Omega Chemical PRP Group, ("OPOG");
and the Omega Chemical PRP Group LLC ("Omega LLC") (collectively, the "Group"), on the
one hand, and the entity named on the execution page and on Exhibit A or B of this Agreement
("Settling Party"), on the other hand, (collectively, the "Settling Parties").
Section 1.02 Consideration.
Whereas, EPA's stated in its September 7, 2004 letter to the Omega De Minimis Parties
that if parties are successful in negotiating a settlement with OPOG, "then EPA will not pursue
[them] further" and in consideration of the covenants, promises, and releases set forth below, the
Settlement Amount to be paid by the Settling Party as set forth in Exhibit A or B, and without the
admission or adjudication of any liability or any issue of fact or law, except as specified herein,
the Parties hereby agree as follows:
ARTICLE II.
DEFINITIONS
Unless otherwise expressly provided herein, terms used in this Agreement that are
defined in the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 as amended, 42 U.S.C. Section 9601 et seq. ("CERCLA"), or in the National Contingency
Plan ("NCP") promulgated pursuant to CERCLA, shall have the meanings assigned to them in
CERCLA or the NCP. Whenever the capitalized terms listed below are used in this Agreement,
the following definitions shall apply:
Section 2.01 "Affiliated Parties" shall mean:
(a) As to each of the entities composing the Group: its shareholders, officers,
directors, members, partners, parent corporations, subsidiaries, divisions, related and affiliated
entities or persons, employees, agents, attorneys, trustees, beneficiaries, past owners and
operators, predecessors, successors and assigns.
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
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PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
(b) As to a Settling Party: its shareholders, officers, directors, members,
partners, parent corporations, subsidiaries, divisions, related and affiliated entities or persons,
employees, agents, attorneys, trustees, beneficiaries, past owners and operators, predecessors,
successors and assigns.
Section 2.02 "Agreement" shall mean this Omega Chemical Site Settlement
Agreement including all Exhibits thereto.
Section 2.03 "Claims or Claims and Liabilities" shall mean any and all
claims (including without limitation all contribution claims in litigation or arbitration), losses,
demands, causes of action, obligations, direct or consequential damages, injuries, liens, costs
(including without limitation reimbursement of government response costs and legal costs), civil
fines, penalties, expenses, fees and liabilities of any nature whatsoever (including without
limitation attorneys' fees), whether contractual, statutory, equitable or under common law,
whether known or unknown, whether accrued or unaccrued, that are based on or arise from the
Site
Section 2.04 "Consent Decree or Other Agreements" shall mean (1) the
Partial Consent Decree entered in United States of America v. Abex Aerospace Division, et al.,
U.S.D.C. (Central District—CA, Western Div.) CV-00-012471, and (2) any Government
(a) orders, (b) directives or (c) mandates, or (3) other agreements which may be entered into by
the Group or any of its members with some or all of the Governments and/or other PRPs, in
connection with the Site. The term shall also include any ancillary agreements (such as license
access agreements, articles of incorporation, statements of work, Phase la Response Work design
plan, Phase la Response Work action plan, etc.) to the extent necessary to implement such work,
whether or not incorporated in a Consent Decree or Other Agreements.
Section 2.05 "DTSC" shall mean the California Department of Toxic Substance
Control.
Section 2.06 "Effective Date" as to each Settling Party shall mean the date
funds from that Party are received by the Group pursuant to Section 3.01(b),
Section 2.07 "EPA" shall mean the United States Environmental Protection
Agency and the United States when acting on behalf of EPA.
Section 2.08 "Excluded Matters" is defined in Section 5.02.
Section 2.09 "Governments" shall mean the United States, the State of
California including, but not limited to DTSC and the Regional Water Quality Control Board
("RWQCB") and any cities, municipalities or local agencies.
Section 2.10 "OPOG" shall mean the Omega Chemical PRP Organized Group,
also known as the Omega Chemical PRP Group formed on or about December 21, 1994 by the
Omega Chemical Site PRP Group Participation Agreement, as amended from time to time;
OMEGA CHEMfCAL SITE
SETTLEMENT AGREEMENT
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PRIVILEGED AND CONFIDENTIAL
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Section 2.11 "Group" shall mean OPOG and the Omega Chemical PRP Group
LLC.
"Omega Chemical PRP Group LLC" shall mean Omega Chemical PRP Group
LLC,
Section 2.12 "OPOG Members" shall mean the members of OPOG that are
listed on Exhibit D.
Section 2.13 "Omega Site Settlement Escrow" shall mean an escrow
established by the Omega LLC.
Section 2.14 "Party" shall mean a Settling Party or the Group; "Parties" shall
mean the Settling Parties and the Group, The terms "Party" or "Parties" do not include other
persons, companies, PRPs or Group members.
Section 2.15 "PRPs" shall mean potentially responsible parties with respect to
the Site that are not Settling Parties as defined herein.
Section 2.16 "Regional Response Work" shall mean work that the
Governments require the Parties, or any one of them to perform, or which they perform at the
request or demand of the Governments or any one of them, regarding regional groundwater
contamination alleged to be attributed to the Site.
Section 2.17 "Settlement Amount" shall mean the amount of money calculated
in accordance with the terms of this Agreement and set forth in Exhibit A or B, paid by the
Settling Party in consideration for the covenants, promises, and releases herein by the Group.
Section 2.18 "Settling Party" shall mean the entity or person that has executed
this Agreement other than the Group.
Section 2.19 "Site" and "Omega Site" shall mean the Omega Chemical
Corporation Superfund Site listed on the National Priorities List on January 19, 1999, 64 Fed.
Reg. 2945.
Section 2.20 "State" shall mean the State of California, its departments,
agencies and instrumentalities, including, but not limited to, DTSC and the RWQCB.
Section 2.21 "Total Collective Costs" shall mean the total Site response costs
that have been or are in the future expended by the Group and the Settling Parties. Total
Collective Costs shall include costs attributable to (a) OPOG members, (b) PRPs OPOG
members have, as of the Effective Date, assumed responsibility for, (c) PRPs the Group has or
does otherwise settle with, (d) the Settling Parties herein, and (e) PRPs from whom the Group
recovers through litigation to judgment. Total Collective Costs shall not include costs incurred
by third parties, including the Omega Small Volume Organized Group (OSVOG) or
expenditures from funds obtained by EPA from its settlements with PRPs, including its
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
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PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
settlements with de minimis parties nor shall it include any costs incurred by PRPs in executing
EPA Unilateral Administrative Order 2004-04.
Section 2.22 "United States" shall mean the United States of America, its
departments, agencies and instrumentalities.
ARTICLE III.
OBLIGATIONS OF THE PARTIES
Section 3.01 Funding and Work Arrangements.
(a) Pursuant to the terms and conditions set forth below, and after the Effective Date,
the Group shall assume each Settling Party's responsibilities for the Site, including, but not
limited to, all response costs associated with the Site, except as to (1) Excluded Matters set forth
in Section 5.02, and (2) ministerial tasks imposed by a Consent Decree or Other Agreements
and/or any administrative order issued by a Government that by their nature must or reasonably
should be performed individually by that Party, such as the retention of that Party's documents or
notification to the Governments of a change in that Party's corporate status. This assumption of
responsibilities shall not extend to any member of OPOG except as to OPOG Members set forth
on Exhibit D under the terms and conditions set forth in Exhibit E. These continuing obligations
and/or required activities shall not obligate a Settling Party to pay the Group or be legally
responsible for any amount in addition to that set forth in Exhibit A or B.
(b) Pursuant to the terms and conditions set forth below, each Settling Party shall pay
the total amount set forth on Exhibit A or B for that Settling Party.
(1) Settling Parties listed on Exhibit A agree to pay in settlement of their
liabilities $5,550 per ton of wastes listed in Exhibit A. Further, each Settling Party listed on
Exhibit A agrees to pay its percentage share, as stated on Exhibit A, of the amount by which
Total Collective Costs exceed $70 million, up to the sum of $93 million in Total Collective
Costs. Each Settling Party's percentage share shall be equal to the volume listed for that Settling
Party in Exhibit A multiplied by 5,550 divided by 70 million. Each Settling Party listed on
Exhibit A agrees not to contest this obligation except as to the accounting of Total Collective
Costs.
(2) Settling Parties listed on Exhibit B agree to pay in settlement of their
liabilities $6,550 per ton of wastes listed in Exhibit B. However, Settling Parties listed in
Exhibit B shall have no further payment obligations under this Agreement.
(c) Payments shall be made into an account designated by the Group by wire transfer
or other good and available funds.
Section 3.02 Consent Decree or Other Agreements.
(a) Each Settling Party shall cooperate with the Group to the extent reasonable and
practical in an attempt to re-open, as appropriate, a Consent Decree or Other Agreements with
any Government (including but not limited to the Partial Consent Decree entered in United States
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
4 id-
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
of America v. Abex Aerospace Division, et al., U.S.D.C. (Central District—CA, Western Div.)
CV-00-012471, governing implementation of the Phase la Response Work, and if necessary
Regional Response Work, and the reimbursement of Government Response Costs) for the
purpose of adding the Settling Party to such Consent Decree or other Agreements for the limited
purpose of obtaining contribution protection for such Settling Party.
(b) In the event that a Consent Decree or Other Agreements have been or are entered
into with any Government, the Group agrees to use good faith efforts (1) to obtain releases from
any Government's Claims against each Party, and (2) to obtain contribution protection for each
Party to the fullest extent authorized in Sections 113(f)(2) and 122(g)(5) of CERCLA, 42 U.S.C.
Section 9613(f)(2) and Section 9622(g)(5), or other provisions of State or federal law, but subject
to that Party's continuing and reasonable compliance with this Agreement. Any releases or
contribution protection obtained by the Group pursuant to the previous sentence shall be at least
as broad as any releases or contribution protection which the Group obtains for itself relating the
Omega Site. Each Settling Party shall reasonably cooperate with the Group and sign the Consent
Decree or Other Agreements as necessary to realize the objectives described in this Section.
Nothing in this paragraph shall require any Settling Party to sign any agreement which requires it
to undertake any response activities regarding the Site or any joint and several obligations.
Section 3.03 Settling Party's Representations Regarding Disclosures.
Each Settling Party shall complete in full and execute Exhibit C hereto. The Group has
entered into this Agreement in reliance on these representations by each Settling Party in its
Exhibit C. If the Group demonstrates that the Settling Party knowingly made false
representations in its Exhibit C then the release and covenant not to sue shall not apply to any
additional waste identified.
ARTICLE IV.
ALLOCATION AND JUDICIAL APPROVAL
Section 4.01 Judicial Approval of Settlement
(a) OPOG and the Omega LLC shall amend their complaint in Omega Chemical PRP
Group LLC, and Omega Chemical PRP Group, an unincorporated association, v. Aaron Thomas
Company, Inc., a California corporation, et al., (Central District—CA, Western Div.)
CV-04-01340, or Omega Chemical PRP Group LLC, a Delaware limited liability company, and
Omega Chemical PRP Group, an unincorporated association, v. Advanced Packaging Systems,
a California corporation, et al., (Central District—CA, Western Div.) CV-05-00754, or file a
separate complaint to add or include each Settling Party not previously named.
(b) Each Settling Party who entered a tolling agreement agrees that the agreement is
terminated as of 45 days prior to the filing date of the amended or additional complaint adding
that party.
(c) OPOG and the Omega LLC will move the court for an order and judgment,
inter alia, (1) approving this Settlement Agreement, (2) ruling that all claims for contribution or
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
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PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
indemnification, however denominated, except as preserved herein, against the Settling Parties
and Affiliated Parties are barred, and (3) retaining jurisdiction for the purpose of enforcing the
order and judgment. Each Settling Party shall cooperate with the Group to the extent reasonable
and practical in obtaining such order and judgment.
(d) The payments under paragraph 3.01 shall be due within thirty (30) days after the
Court issues its order regarding approval of the Settlement Agreement. In the event that the
Court does not provide all of the relief described in paragraph 4.01 (c) then each Settling Party
may either pay the amount due under this Agreement, in which case it shall be entitled to all of
the other benefits of this Agreement, or not pay in which case the Agreement shall not be
effective with regard to that Settling Party.
ARTICLE V.
RELEASES AND COVENANT NOT TO SUE
Section 5.01 Releases for Settled Matters.
The Parties mutually release and covenant not to sue each other and each of their
Affiliated Parties for all Claims and Liabilities that are based upon or arise from the Site
provided, however, that (1) the releases and covenants not to sue do not encompass any of the
Excluded Matters set forth in Section 5.02 below, and (2) the Group shall have the right to seek
additional recovery as set forth in Section 5.03 below. These mutual releases and covenants not
to sue shall become effective upon the Effective Date.
Section 5.02 Excluded Matters.
The following Claims and Liabilities are Excluded Matters that are not subject to the
release and covenant not to sue provisions of Section 5.01 above:
(a) Claims and Liabilities of a Party against its own Affiliated Party based upon or
arising from that Party's liability relating to the Site;
(b) Claims and Liabilities of a Party against or between any insurance company,
obligor, surety or indemnitor or other person based upon or arising from that Party's (or an
Affiliated Party's) claims for insurance, indemnification or other recovery;
(c) Claims and Liabilities for natural resource damage pursuant to CERCLA
Section 107(0 or any equivalent State law;
(d) Claims and Liabilities by any person or entity for death, personal injury or
disease, loss of future or past wages or income, loss of consortium, property damage (other than
response costs related to the Site) , diminution in value, or economic loss, whether based on
negligence, strict liability, abnormally dangerous activity, statute or other law, including but not
limited to assault, battery, nuisance, trespass, negligence, strict liability, products liability and
infliction of emotional distress and/or fear,
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
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(e) Claims and Liabilities arising under or with regard to California's Safe Drinking
Water and Toxic Enforcement Act of 1986, popularly known as "Proposition 65," California's
Unfair Business Practices Act pursuant to Cal. Bus. Code Section 17200, and any rules,
regulations, orders or notices promulgated or issued thereunder;
(g) Claims and Liabilities based upon or arising from events or occurrences caused by
a Settling Party after the Effective Date;
(h) Actions to enforce or for breach of this Agreement;
(i) Claims and Liabilities based upon or arising from any volume of material
knowingly not disclosed in Exhibit C or for acts or omissions of the Settling Party or Affiliated
Party(s) other than as the generator of record for that volume of material set forth on Exhibit A
or B; and
(j) Claims and Liabilities based upon or arising from the Site that meet all of the
following conditions: (1) are not related to obligations under the Partial Consent Decree entered
in United States of America v. Abex Aerospace Division, et at., U.S.D.C. (Central District—CA,
Western Div.) CV-00-012471, (2) are not related to investigation or remediation of soil or soil
vapors at the Site, (3) are not related to soil vapors emanating from the Site other than via the
groundwater pathway, and (4) are not for Regional Response Work.
Section 5.03 Right of Additional Recovery.
The Group shall have the right of additional recovery from each Settling Party listed on
Exhibit A of its percentage share, as stated on Exhibit A, of the amount by which Total
Collective Costs exceed $70 million, not to exceed the Settling Party's share of $93 million.
Section 5.04 Civil Code Section 1542.
As to the Settled Matters in this Agreement, the Parties specifically and expressly waive
any rights and benefits available to them under the provisions of Section 1542 of the California
Civil Code, which provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected
his settlement with the debtor.
The Parties have consulted counsel and fully understand the statutory language and intent
of Civil Code Section 1542. The Parties understand that if the facts or law forming the basis for
this Agreement are found hereafter to be different from the facts or law now believed by the
Parties to the Agreement to be true, they expressly accept the consequences, and assume the risk
of such possible difference in facts or law and agree that the Agreement shall remain fully
effective nonetheless, and that any different facts or law shall not be grounds for any action
contrary to the Agreement, including an action for rescission or restitution unless such fact has
been intentionally concealed or fraudulently misrepresented.
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
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ARTICLE VI.
ASSIGNMENTS AND SPECIFICALLY RETAINED CLAIMS
Section 6.01 Less Than Full Compensation.
The Settlement Amount to be paid by each Settling Party is the full share of Settled
Matters attributable to that Settling Party, but is not intended to constitute full compensation for
the Group's Claims and Liabilities relating to the Settled Matters, The Group expressly reserves
the right to seek full compensation for their Claims and Liabilities relating to the Settled Matters
from all persons other than the Settling Parties and their Affiliated Parties that may have
responsibility or liability for Settled Matters.
Section 6.02 Claims for Settled Matters.
Each Settling Party hereby assigns without recourse to the Omega LLC any and all
claims and rights to assert Claims and Liabilities for Settled Matters, including cost recovery,
contribution, equitable indemnification, unjust enrichment or comparable claims under federal or
state law, against all persons that may have responsibility or liability for Settled Matters. The
foregoing assignment, however, does not include any claims the Settling Party may have against
its own insurance carriers, indemnitors, sureties or obligors, such claims being expressly
reserved to the Settling Party.
Section 6.03 No Prior Assignment
Each Settling Party represents and warrants that neither it nor any of its Affiliated Parties
has assigned or transferred or purported to assign or transfer, voluntarily, involuntarily, or by
operation of law, any Claim, cause of action, or Settled Matter released pursuant to this
Agreement or any part or portion thereof. Each of the Parties agrees to indemnify each other
Party and hold it harmless from any claim, demand, damages, debt, obligation, cost, expense,
lien, action, or cause of action (including the payment of attorney's fees and costs actually
incurred, whether or not litigation is commenced) based upon, in connection with, or arising out
of any such assignment or transfer or purported assignment or transfer to any person or entity not
a Party to this Agreement.
Section 6.04 Assignor's Cooperation.
Each Settling Party shall execute, and shall make good faith efforts to secure the
execution by appropriate Affiliated Parties of, such further documents as the Group may
reasonably request from time to time in order to confirm, effectuate, or enforce the assignments
of claims made in this Article VI. Each Settling Party agrees to reasonably cooperate with the
Group, and to use good faith efforts to secure the cooperation of its Affiliated Parties, in the
Group's conduct of or participation in any private, administrative, or judicial matters or
proceedings to the extent they may implicate or affect any claim assigned in this Article VI.
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ARTICLE VII.
GENERAL PROVISIONS
Section 7.01 Effect of Agreement; Separate Agreements.
Nothing in this Agreement shall be construed to create any rights in, or grant any cause of
action to, any person not a Party to this Agreement. The preceding sentence shall not be
construed to waive or nullify any rights that any person not a Party may have under applicable
law. Subject to the provisions of Sections 5.01, 5.02 and 5.03, each Party reserves any and all
rights, defenses, Claims and Liabilities, demands, and causes of action which it may have with
respect to any matter, transaction, or occurrence against any person not a Party or an Affiliated
Party. Notwithstanding any provision to the contrary, this Agreement does not modify or vitiate
any separate agreement between the Parties which specifically refers to this Agreement and
which modifies or is contrary to this Agreement.
Section 7.02 Survival of Agreement
This Agreement shall survive and remain fully valid and enforceable whether or not
persons who are not Parties enter into a Consent Decree or Other Agreements with any
Government.
Section 7.03 No Admission of Liability.
Nothing contained in this Agreement nor the payment of any amount by any Party is or
may be construed to be an admission of any wrongdoing or liability; and more specifically, is not
an admission or acknowledgment by any Party that a release or threatened release of a hazardous
substance has occurred at or from the Site or that an alleged release has resulted in response costs
incurred by any person.
Section 7.04 Notice.
Whenever, under the terms of this Agreement, written notice is required to be given or a
document is required to be sent to the Group, it shall be directed to:
Omega Chemical PRP Group LLC
c/o Keith F. Millhouse
Millhouse Law Group
2815 Townsgate Road, Suite 330
Westlake Village, California 91361
and to such additional or substitute recipient as the Group may from time to time designate.
Whenever, under the terms of this Agreement, written notice is required to be given, or a
document is required to be sent to a Settling Party, it shall be directed to the Settling Party's
representative for service as designated on the execution page.
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
9 n
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
Section 7.05 Remedies.
This Agreement may be pleaded as a complete defense to, and may be used as a basis for
an injunction against bringing, any Claims and Liabilities released hereunder. In addition, any
Settling Party may bring an action for injunctive relief against the Group or any the OPOG
Members to enforce the terms of this agreement including, but not limited to, the obligation of
those OPOG Members listed on Exhibit D to assume the Settling Party's obligations under
3.01 (a) pursuant to the OPOG Members Assurance, Exhibit E.
Section 7.06 Enforcement of Agreement
If any Party to this Agreement brings an action to enforce its rights hereunder, the
prevailing party shall be entitled to recover:
(a) Interest on any monies determined to be owing to it, to be calculated at the rate of
seven percent (7%) per annum, compounded daily; and
(b) Its costs and expenses, including court costs, attorneys' fees, and expert and
consultants fees, if any, incurred in connection with such action.
Section 7.07 Construction of Agreement.
This Agreement shall be construed as a whole in accordance with its fair meaning and in
accordance with the laws of the State of California. Neither the Group, nor any member of the
Group, shall challenge the assumption provisions set forth in Section 3.01 (a) or in the OPOG
Members Assurance, Exhibit E. Should any part of this Agreement be found void or invalid, the
remaining portions of this Agreement shall remain in effect. However, in the event that the
assumption provision set forth in Section 3.01(a) is found void or invalid, then this Agreement
shall be void ab initio and all sums paid by the Settling Parties to the Group shall be returned
within 30 days of such finding. The Parties have jointly drafted this Agreement and the language
of the Agreement shall not be construed in favor of or against any particular Party based on the
Parties' respective roles in the drafting process. The headings used herein are for reference only
and shall not affect the construction of this Agreement. This document may be executed in
counterparts with each copy considered an original. A copy of the full Agreement will be
distributed to each Party upon complete execution and a copy will also be retained by and
available to any Party from the Omega LLC or such other entity as the Group may from time to
time designate.
Section 7.08 Independent Counsel.
Each of the Parties represents and warrants that, in connection with the negotiation and
execution of this Agreement it has been represented by independent counsel of its own choosing,
that it has not relied upon the advice or counsel of the other Parry's independent counsel in the
negotiation or drafting of this Agreement, that it has executed this Agreement after receiving the
advice of such independent counsel, that its representative has read and understands the
provisions and terms of this Agreement, and that it has had an adequate opportunity to conduct
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
10
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
an independent investigation of all facts and circumstances with respect to all matters that are the
subject of this Agreement.
Section 7.09 Deadlines.
If the date by which any payment must be made or any action must be taken pursuant to
this Agreement is a Saturday, Sunday, or holiday as described in California Civil Code Section 7,
then that date shall be extended until the next calendar day which is not a Saturday, Sunday, or
holiday.
Section 7.10 Sole Agreement
This Agreement represents the sole and entire agreement between the Parties and
supersedes all prior agreements, negotiations and discussions between the Parties hereto and/or
their respective counsel with respect to the subject matters covered hereby.
Section 7.11 Amendment to Agreement
Any amendment to this Agreement must be in a writing, signed by duly authorized
representatives of the Parties hereto and stating the intent of the Parties to amend this Agreement.
Section 7.12 Corporate Auth ority.
All corporate Parties hereto represent and warrant that the execution and delivery of this
Agreement, including the attached Exhibits, has been duly and validly authorized and approved
by all requisite corporate action and that no further action is necessary to make this Agreement
and all transactions contemplated hereby valid and binding on the parties in accordance with its
terms. The corporate signatories hereto represent and warrant that they are authorized to execute
and deliver this Agreement on behalf of their respective corporate entities or other entities on
whose behalf they have signed. Without limiting the foregoing, the signatories on behalf of
OPOG and Omega LLC hereby represent and warrant that the execution and delivery of this
Agreement has been duly and validly authorized and approved by all requisite corporate or other
necessary action including as required by the Omega Chemical Site PRP Group Participation
Agreement, as amended from time to time, including as amended by Exhibits G hereto, and that
no further action is necessary to make this Agreement and all transactions contemplated hereby
valid and binding on the OPOG and Omega LLC.
Section 7.13 Binding.
This Agreement shall apply to and be binding upon the Parties, and their successors and
assigns. Any change in ownership or corporate or other legal status, including, but not limited
to, any transfer of assets or real or personal property, shall in no way alter the status or
responsibilities of the Parties under this Agreement. However, nothing in this Agreement, nor
any purported assignment, shall relieve the Group, or any of the OPOG Members, of their
obligations under this Agreement.
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
II
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
IN WITNESS WHEREOF, the Parties hereto enter into this Omega Chemical Site
Settlement Agreement. Each person signing this Agreement represents and warrants that he or
she has been duly authorized to enter into this Agreement by the company(ies) or entity(ies) on
whose behalf it is indicated that the person is signing.
OMEGA CHEMICAL PRP GROUP
Dated:
Signature:
Typed Name: Larry G. Gutterridge
Title: Counsel
OMR.,U-III;\IICAL sni-:
SLTILLMLNT A(iRLI-:.MF\T
12
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
OMEGA CHEMICAL fRP GROUP LLC
Dated: '/
Signature:
Typed Name: Keith F. Millhouse
Title: Member
[Settling Party execution pages follow.]
OMKi.AC HI-MK'AI. Mil:
SI:T !LI-MI NTAGRH Mf.vr
13
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
SETTLING PARTY:
Dated:
Signature:
Typed Name:
Title:
Name and address of Settling Party's representative
for service hereunder:
Name:
Address:
Phone:
E-mail:
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
14
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
EXHIBIT A
TO OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
SETTLING PARTIES WITH RE-OPENER AND SETTLEMENT AMOUNTS
Settling Party Volume Settlement Amount
American International Industries 8.6611 $49.179.11
Atoll Holdings, Inc.4.8164 $26.731.02
Rooke Corp. d/b/a Aviation
Equipment, Inc. [terms]3.8364 $21,292.02
Brunton Enterprises, Inc.3.0650 $17,010.75
Can/in Corp.5.5044 $30,549.42
Central Plaza 7,5380 $41,835.90
Corchem Corporation 7.3392 $40.732.56
Couch and Philippi dba Primus,
Inc.8.7153 $48.369.92
Ed-Lin Auto Body/Modem Auto
Body 3.3360 $18,514.80
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit A
I
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
Gamboa's Body & Frame, Inc.
Good-West Rubber Corp.
I & 1 Debarring, Inc.
JD Property Management, Inc.
Kwikset Corporation
Luppen Holdings Inc.
M & M Printed Bag, Inc.
Newton Heat Treating Co., Inc.
Northwestern, Inc.
Penske Corporation and Penske
Automotive Group, Inc.
Pneudraulics, Inc.
Pocino Foods Company
3.4000
3.0441
6.7763
3.5500
7.6103
3.8364
6.1925
3.2109
5.7028
3.1901
3.2109
3.4277
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit A
2
$18.870.00
$16,894.76
$37.608.47
$19.702.50
$42.237.17
$21,292.02
$34.368.38
$17.820.50
$31.650.54
$17.704,78
$17.820.50
$19,023.74
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
Quaker City Plating Ltd.5.0457 $28.003.64
Santa Fe Braun 8.1057 $44,986.64
Tech Graphics, Inc./Paul Cain 7.7500 $43.012.50
Unldynamics/Phoenix, Inc., now
known as Crane Co.3.6696 $20.366.28
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit A
3
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
EXHIBITS
TO OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
SETTLING PARTIES WITHOUT RE-OPENER AND SETTLEMENT AMOUNTS
Settling Party Volume Settlement Amount
Aircraft Cylinder & Turbines 3.6279 $23,762.75
Air Mechanical, Inc. (The A & T
Group, Inc.)5.2617 $34,464.14
Allen Foam Corporation 5.9500 $38.972.50
Allen L. Bender, Inc.5.2457 $34,359.34
BC Laboratories, Inc.6.1633 $40.369.62
Bowen Printing, Inc.dba Bowen
Enterprises 3.0574 $20.026.23
Catholic Healthcare West, a
California nonprofit public benefit
corporation, dba St. Mary
Medical Center 4.6324 $30,342.22
Ceradyne, Inc.5.4210 $35.507.55
City of Santa Barbara 3.0935 $20,262.43
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit B
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
City of Carlsbad
College of the Desert
Cooper Industries, Inc. (McGraw
Edison)
Fort Kent Holdings, Inc. on behalf
of Dunham Bush Inc.
Cognis Corporation as successor
to Henkel Corporation, for itself
and on behalf of Henkel
Corporation
Ivy Hill Corp.
Kennedy-Wilson Properties, Ltd.
La Mirada Products
Madison Industries of CA
Martek Power Abbott. Inc.
Maxon Industries
Melles Griot. Inc.
5.1362
3.7530
5.7500
5.9631
4.6670
3.3360
4.3500
5.0000
9.1519
5.4869
6.0674
8.9697
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit B
2
$33,642.11
$24,582.15
$37,662.50
$39.058.31
$30.568.85
$21.850.80
$28.492.50
$32,750.00
$59.944.95
$35,939.20
$39.741.47
$58.751.54
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
Radiant Technology Corporation 4.8998 $32,093.69
Sears, Roebuck and Co.6.0920 $39.902.60
Superior Controls Co., Inc.*3.3694 $22.069.57
Textron Inc.7.5060 $49,164.30
Ventura Townehouse Inc.7.3899 $48.403.71
Western Tube & Conduit
Corporation 4.0245 $26.360.48
Westmont College 5.8555 $38.353.53
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit B
3
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
EXHIBIT C
TO OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
CERTIFICATION BY SETTLING PARTIES
The undersigned, on behalf of the Settling Party in this Omega Chemical Site Settlement
Agreement ("Agreement") stated below, certifies and attests, for the limited purpose of
settlement and for no other purpose, as follows:
1. To the best of the Settling Party's knowledge, the Volume assigned to Settling
Party in the Agreement represents the total amount of the Settling Party's material sent to or at
the Omega Site, including any material that may be attributable to Settling Party's Affiliated
Parties.
2. Settling Party verifies (1) that to the best of its knowledge, Settling Party has
provided the Group with copies of all of Settling Party's and Settling Party's Affiliated Parties
manifests and reasonably obtainable waste disposal records relating to the Omega Site, and has
no reason to believe those manifests and records are incomplete or inaccurate, or (2) that it is
relying on the manifests and records provided to the Settling Party and the Settling Party's
Affiliated Parties by the United States Environmental Protection Agency, is agreeing to the
EPA's volume determinations based thereon and has no reason to believe that those manifests,
records and volumes are incomplete or in accurate.
On behalf of the Settling Party, I hereby state that I am authorized to make this
certification by and on behalf of the Settling Party, and I make this certification that reason, I
have read the foregoing paragraphs and know their contents. I am informed and believe and on
that ground allege that the information set forth above is, to the best of my knowledge, verily
true and correct.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
SETTLING PARTY:
Dated:
Signature:
Typed Name:
Title:
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit C
1
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
EXHIBIT D
TO OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
OPOG MEMBERS MAKING OPOG MEMBERS ASSURANCE
1. Alcoa Inc. (on behalf of Alcoa Electronic Packaging, Inc., Alcoa Global Fasteners for
TRE/Weslock and Alumax for Amerimax Building Products for Admiral
Aluminum)
2. Allied Signal Inc.
3. Alpha Therapeutic Corporation
4. American Standard Inc. acting through its Trane business
5. Applied Micro Circuits Corporation
6. Astro Aluminum Treating Company
7. BASF Corporation
8. Baxter Healthcare Corporation
9. Bio Science Enterprises
10. Boeing Satellite Systems, Inc.
11. BP AMOCO Chemical Company
12. Cal Mart by Tucson Valley Liquidating Trust by J. Emery Barker, Trustee
13. California Hydroforming Co., Inc.
14. CC Industries Inc. (Federal Envelope)
15. Center Line Wheel Corporation
16. Chemical Waste Management, Inc.
17. Cintas Corporation (successor to Unitog Company)
18. Coastcast Corporation
19. Coatings Resource Corporation.
20. Crosby & Overton Inc.
2l.CTL Printing Inc.
22. Dude, Inc.
23. Engraph Inc./ Patton Sonoco Products
24. FHL Group
25. General Dynamics Corporation (Hughes Missile System)
26. Gul (Stream Aerospace Corp.
27. Hercules Corporation, Inc.
28. Hexcel Corporation (Ciba-Geigy)
29. Hitachi Home Electronics (America), Inc.
30. Honeywell Inc. (Sperry Aerospace & Marine Group)
31. International Paper Company
32. K.C. Photo Engraving Co.
33. Kinder Morgan Liquids Terminals, LLC, formerly known as GATX Terminals
Corporation
34. LA County MTA (So. California RTD)
35. Luxfer USA Limited
36. Majon Inc./Hurst Labeling
37. Manville Corporation (Celite Corp.)
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit E
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
38. Masco Plumbing Products, Inc. as indemnitor for Norris Industries, Inc.
39. McDonnell Douglas Helicopter Company, a wholly owned subsidiary of McDonnell
Douglas Corporation, a wholly owned subsidiary of The Boeing Company
40. MCP Foods (by Hexion Specialty Chemicals, Inc.and Firmenich Incorporated)
41. Metropolitan Water District of So. California
42. Northrop Grumman Systems Corporation
43. Online Corp.
44. Pacific Bell Telephone Company
45. Pilkington/Swedlow
46. Raytheon Company
47. Reichhold, Inc.
48. Robinson Prezioso, Inc.
49. Safety-Kleen Systems, Inc.
50. Schering Corporation
51. Sempra Energy Solutions
52. Shiley, Inc. (Pfizer)
53. Sigma Casting Corporation
54. Signet Armorlite, Inc.
55. Soco West, Inc. as successor to Holchem, Inc.
56. Sparton Technology, Inc.
57. State of California acting by and through the Department of Transportation
58. Texaco Inc.
59. Texas Instruments (Brown Burr)
60. The Boeing Company
61. The Sherwin-Williams Company
62. Treasure Chest
63. Union Oil Company of California
64. Univar Corp., Univar USA Inc. (f/k/a Van Waters & Rogers Inc., Vopak Distribution
Americas Inc.)
65. Walt Disney Pictures and Television
66. Weber Aircraft
67. Yort, Inc. (Troy Lighting, Int. - Tiffany Division)
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit 0
2
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
EXHIBIT E
OPOG MEMBERS ASSURANCE
The OPOG Members listed on Exhibit D agree that if the Group fails to carry out
any of the commitments set forth in the Omega Chemical Site Settlement Agreement,
(hereinafter the "Underlying Obligations") the OPOG Members will do so, subject to the
rights of the Group and the OPOG Members to contest any obligation to EPA or any
other regulatory agency under any Consent Decree or Other Agreements without
imposing any additional risks or obligations on the Settling Parties. The obligations of the
OPOG Members to carry out the Underlying Obligations are joint and several,
unconditional and irrevocable, except as provided in the Underlying Obligations.
However, should this OPOG Members Assurance ("Assurance") be invoked against one
or more but not all of the OPOG Members, such member or members shall have a right
of contribution against the other OPOG Members. The OPOG Members shall be
responsible for the "orphan share" if any resulting from the dissolution or insolvency of
any OPOG Member. However, the right of an OPOG Member to seek contribution
against another OPOG Member shall not affect any OPOG Member's obligation under
this Assurance to satisfy the Underlying Obligations.
The commitments under this Assurance shall not be subject to any reduction,
limitation, impairment or termination for any reason, including, without limitation, as a
result of any waiver, release, surrender, alteration or compromise in the Underlying
Obligations, and will not be subject to any defense or set off, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality or unenforceability of any
of the Underlying Obligations or any discharge of debtor from any of the Underlying
Obligations under bankruptcy or similar proceeding. Further, the OPOG Members waive
any and all benefits which might otherwise be available to them under California
Commercial Code § 3605, California Civil Codes §§ 2809, 2810, 2819, 2839, 2845,
2850,2899 and 3433, or any comparable provision of any other applicable law, as well as
any and all other rights, defenses and benefits limiting the liability of or exonerating
guarantors or sureties otherwise afforded by law.
The OPOG Members hereby waive presentment, demand and protest of any
Underlying Obligations and also waive notice of protest for non payment. The OPOG
Members acknowledge that all the waivers set forth herein are freely granted, after
consultation with competent counsel, since it is the intent and purpose of the OPOG
Members that all of the commitments hereunder be absolute, independent and
unconditional, except as provided in the Underlying Obligations, under any and all
circumstances.
This Assurance will be governed by and construed in accordance with the laws of
the State of California; any suit brought hereon may be brought in the County of
Los Angeles, State of California.
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit E
1
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
The undersigned represents and warrants that it has authority to sign this
Assurance on behalf of each of the OPOG Members listed in Exhibit D. An OPOG
resolution authorizing Larry G. Gutterridge to sign this OPOG Members Assurance on
behalf of the individual members of OPOG has been duly enacted pursuant to the
procedures set forth in and the authority granted by the OPOG PRP Agreement. A, record
of the authorization is set forth as Exhibit F.
OMEGA CHEMICAL PRP GROUP
Dated:
Signature:
Typed Name: Larry G. Guttferridge
Title: Counsel
OMKGA CHEMICAL SITK
ShTTLI-MENT AGREEMENT
Exhibit F.
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
EXHIBIT F
AUTHORITY TO EXECUTE SETTLEMENT AGREEMENT
AND MEMBERS ASSURANCE
At a duly noticed meeting of the Omega PRP Organized Group (OPOG or Group), held
on March 15,2006, pursuant to the Omega Chemical PRP Organized Group Participation
Agreement, as amended from time to time, including as amended by Exhibit G hereto,
the Group authorized Larry G. Gutterridge to (1) on behalf of OPOG, execute the Omega
Chemical Site Settlement Agreement with the "Albert Cohen" Group of de minimis
parties, and (2) on behalf of each Member of OPOG listed on Exhibit D, execute Exhibit
E to said agreement, OPOG Members Assurance, thereby binding each such OPOG
member to said Assurance as if each OPOG Member were an original signatory thereto.
A quorum was present and the authorization was passed by unanimous voice vote with no
members in opposition.
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit F
1
PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
EXHIBIT G
AMENDMENT TO OMEGA PRP GROUP PARTICIPATION AGREEMENT
At a duly noticed meeting of the Omega PRP Organized Group (OPOG or Group), called
to consider this amendment and held on December 19th, 2005, the Group by a two-thirds
vote of the Voting Power of the Members present or voting by proxy amended the
Omega Chemical Site PRP Group Participation Agreement to add Section 24 as follows:
24. SETTLEMENT
The Group shall have the authority to enter into the
proposed agreement between the Omega Chemical PRP Organized
Group and certain de minimis parties, a draft copy of which is
attached hereto, which, among other things, provides that the
Group assumes certain responsibilities of the settling de minimis
parties related to the Site and by Exhibit E thereto assures that if
the Group fails to meet its obligation under the agreement, then the
Members set forth on Exhibit D to the Agreement shall be jointly
and severally liable for satisfying that obligation. In the event that
any one or more Member listed on Exhibit D is called upon to
satisfy this obligation then the Members listed on Exhibit D agree
to share the obligation according to the respective shares in the
then current OPOG allocation. The agreement must be approved
by a majority vote pursuant to paragraph 3.4 of the Agreement
after appropriate notice is provided under paragraph 3.5 of the
Agreement. The agreement shall be signed by an authorized
representative of the Group.
OMEGA CHEMICAL SITE
SETTLEMENT AGREEMENT
Exhibit G
1