HomeMy WebLinkAboutAD1998-0323 - Original - SAFECO - Kent-Highlands Landfill Settlement Agreement & Site Release - 02/10/1998 SETTLEMENT AGREEMENT AND SITE RELEASE
This Settlement Agreement and Site Release (hereinafter referred to as "the
Agreement") is entered into by and between Safeco Insurance Company of America, General
Insurance Company of America, First National Insurance Company of America (hereinafter
collectively referred to as "SAFECO"), Century Indemnity as successor to CCI Insurance
Company, as successor to Insurance Company of North America, Century Indemnity as successor
to Cigna Specialty Insurance Company formerly known as California Union Insurance Company,
Indemnity Insurance Company of North America (hereinafter collectively referred to as "CIGNA
Companies"), Lincoln Insurance Company and Guarantee Insurance Company, and their officers,
directors, agents, employees, attorneys, representatives and parent, subsidiary or successor
corporations, assigns, future acquired entities or affiliated companies (hereinafter collectively
referred to as "the Insurers") and the City of Kent and its past and present commissioners,
officers, directors, agents, employees, attorneys, representatives and parent, subsidiary or
successor corporations, assigns, future acquired entities or affiliated companies (hereinafter
collectively referred to as "Kent") as of the latest date of execution by all signatories set forth
below. The Insurers and Kent may collectively be referred to as the "Parties."
WHEREAS:
1. The Insurers allegedly provided insurance coverage to certain or all of Kent.
2. Kent individually or collectively owned, leased, conducted operations on, and/or sent
waste to premises located at the Kent-Highlands Landfill (hereinafter referred to as "the Site").
For purposes of this Agreement, the Site includes the facility known as the Kent-Highlands
Landfill, and its associated storage tanks (whether underground or above ground), barrels, storage
containers, conduits, pipes, storage areas, pipelines, buildings, structures, installations, ditches,
landfills, lands, soils, waters (whether said waters be surface waters remaining on the Site or
flowing through or over the Site or ground water flowing through or under the Site) hazardous
substances (as defined in 42 U.S.C. 9601, et sea• or in the applicable state statutes), discharges,
wastes, products or by-products that were at any time associated with activities at the Site
wherever those materials are presently located.
3. The Insurers maintain that there is no insurance coverage under any policy of insurance
issued by the Insurers to Kent for the claim tendered by Kent to the Insurers arising out of alleged
contamination on and/or off the Site and Kent maintains that such coverage does exist.
4. The Parties acknowledge the existence of disputed questions of insurance coverage which
are raised by this claim.
Settlement Agreement and Site Release - I
5. The Parties wish to resolve fully, completely, and finally, all coverage issues that have
existed, now exist or may exist in the future with respect to the claims for either defense or
indemnity submitted by Kent to the Insurers arising out of alleged contamination at the Kent
Highlands Landfill. The Parties' agreement to resolve these issues shall not be taken as an
admission or acknowledgment by any party that coverage either does or does not exist and the
Agreement is not a retraction of the Parties' previous positions regarding coverage.
NOW, THEREFORE, in reliance upon the aforesaid recitals and in consideration of the
mutual agreements contained herein, it is agreed by and between the Insurers and Kent as set
forth herein;
1. Policy
For the purposes of this Agreement only, it shall be deemed that the Insurers
issued the following liability insurance policies to all or certain of Kent either as insureds, named
insureds and/or additional insureds:
CIGNA Companies
AGP 61-87-15-8 (5/31/78 — 5/30/79)
AGP 13-88-76 (1/1/74 —2/28/78)
AGP 10-36-85 (1/1/73 — 12/31/73)
AGP 10-34-20 (5/31/72 — 12/31/72)
ZCV 0056 87 (1/1/81 — 1/l/82)
ZCV 006065 (1/1/82 —4/1/83)
ZCV 006471 (1/1/83 — 1/1/84)
XCP 145071 (1/1/84 — 1/l/85)
SAFECO
CP 198381 (5/31/68 — 5/31/69)
CP 198381 (5/31/69— 5/31/70)
CP 198381 (5/31/70— 5/31/71)
CP 310534 (5/31/71 — 5/31/72)
Settlement Agreement and Site Release - 2
Guarantee Insurance Company
GA 49950 (3/l/78 - 3/l/79)
GA 40722 (3/1/79- 3/l/80)
Lincoln Insurance Company
GA 409737 (3/l/80 - 1/1/81)
This list is not meant to be exhaustive of all policies which the Insurers issued to all
or certain of Kent. It is the intention of the Insurers and Kent, however, that this Agreement shall
apply to all insurance policies (hereinafter collectively referred to as "the Policies") issued by the
Insurers to Kent, whether the Policies are listed above; and whether Kent is an insured, named
insured, additional insured or otherwise allegedly entitled to coverage.
The Parties represent and warrant that after a diligent search they have been unable
to locate any policy or documents evidencing the existence and terms of any other policy or
policies that the Insurers are alleged to have issued to Kent, other than the information provided
to date. Nothing in this Agreement shall constitute evidence of the existence of any such policy or
policies nor shall anything in the Agreement constitute a waiver by the Insurers of their denial of
the existence of any such policy or policies.
2. Agreement by the Insurers
a. In consideration of the agreements herein given by Kent and in response to a
request by Kent for the Insurers to settle the claims made against Kent by the City of Seattle to
fund a portion of the remediation of the on-site and/or off-site contamination in connection with
the Site, the Insurers agree to fund on behalf of Kent the sum stated in paragraph 2b.
b. The Insurers shall pay within 15 days of receipt by the Insurers of a fully executed
copy of this Agreement, the amount of$625,000.00 (six hundred twenty-five thousand dollars) as
follows:
CIGNA Companies $361,625.00
SAFECO $149,375.00
Guarantee Insurance Company $ 73,562.50
Lincoln Insurance Company $ 40,437.50
Settlement Agreement and Site Release - 3
3. Indemnity and Hold Harmless Provisions
a. Kent,jointly and severally, agrees to hold the Insurers harmless and indemnify the
Insurers against any and all claims and/or lawsuits made and/or brought against the Insurers by
any expert, consultant or contractor retained by Kent regarding the Site, which indemnity shall
include all of the Insurers' attorney's fees, costs, disbursements and/or expenses incurred by the
Insurers in defending against such claims and/or lawsuits.
b. Kent, jointly and severally, agrees to hold the Insurers harmless and indemnify the
Insurers against any and all claims and/or lawsuits made and/or brought against the Insurers
arising from:
i. Kent's retention of any experts, consultants or contractors to conduct
investigations, studies, response activities or clean-up activities arising from contamination in
connection with the Site; or
ii. Kent's performance of, or lack of performance of, investigations, studies,
response activities or clean-up activities arising from contamination in connection with the Site.
C. Kent,jointly and severally, hereby specifically agree to defend, indemnify and hold
the Insurers harmless in connection with any other claims or lawsuits, past, present or future,
known and unknown, asserted or unasserted, anticipated or unanticipated which have been or
hereafter may be asserted against the Insurers by any person, including, but not limited to any
claimant, plaintiff, petitioner, governmental agency, entity or body, or insurer or excess insurer in
connection with Kent's involvement at the Site.
d. Nothing in this paragraph, however, shall be construed to modify, amend, or in any
way affect the rights and obligations of the Parties pursuant to the Defense Funding Agreement
previously entered into between and among the Parties except that the Insurers' obligations under
that Defense Funding Agreement will cease upon payment of the amounts owed under the
Defense Funding Agreement for the defense of Kent in the litigation by the City of Seattle for
alleged contamination at the Kent Highlands Landfill.
4. Release
a. In consideration of the payments set forth in Paragraph 2b. and of the agreements
made herein, and except as provided by the Defense Funding Agreement previously entered into
between and among the Parties, Kent releases and forever discharges the Insurers and all other
persons, firms, or corporations who might be claimed to be liable for defense or indemnity under
any Policies, from:
Settlement Agreement and Site Release - 4
i. any and all liability whatsoever, past, present or future, for all claims, actions,
demands, suits, liabilities, obligations, rights or causes of action of every kind and nature
including, but not limited to, compensatory, consequential and/or punitive damages, loss of profit,
compensation, emotional distress, property damage, bodily injury, personal injuries, response
costs, clean-up costs, cost over-runs, damage or injury to natural resources, payment of orphan
shares, expenses, attorney's fees, rescission, reformation, declaratory relief or any other relief,
which claims or causes of action arise out of, allegedly arise out of or are in any way connected
with the Site and including such claims and costs due to future remedy failure or implementation
of re-opener clauses.
ii. any and all claims or causes of action for bad faith, unfair claim handling, refusal
to defend or settle, statutory violations including any alleged violation of the provisions of the
applicable state insurance codes, breach of any implied covenant of good faith and fair dealing,
breach of contract, fraud or misrepresentation in connection with the matters released herein;
iii. any and all claims arising out of or connected with any monies owed by Kent or
any other persons or entities which may involve the interest of Kent, or to become due to any
present or future claimant arising out of or connected with the Site, whether asserted or not
asserted, known or unknown, anticipated or unanticipated, past, present or future.
For purposes of this Agreement only, "claims" or "suits" shall mean any and all obligations,
liabilities, demands, claims, administrative proceedings or lawsuits, past, present or future,
presently asserted or unasserted, known or unknown, anticipated or unanticipated, running in
favor of or against the Insurers and/or Kent arising out of or related to the Site.
b. The Parties acknowledge that private parties and/or governmental agencies,
including, without limitation, the U.S. Environmental Protection Agency and the Washington
Department of Ecology, have or may have asserted certain claims and/or suits or in the future may
assert claims and/or suits against Kent for injuries or damages, and/or for equitable and/or
injunctive relief, arising from the Site. However, it is the express intent of Kent and the Insurers
that the payments by the Insurers to Kent in the sum of$625,000.00 will limit and void under the
Policies, any obligation on the part of the Insurers, past, present and future, including, but not
limited to, any obligation to investigate, defend, pay defense, technical, engineering or consulting
costs, settle or pay settlements or judgments with respect to any pending or future claims or suits
in connection with the Site. Kent expressly accepts the above sum of $625,000.00 in full and
complete satisfaction of all of the Insurers' obligations, past, present and future, to or on behalf of
Kent under the Policies with respect to environmentally-related claims or suits or any other claims
or suits which have or may be brought or asserted against Kent in the past, present or future
regarding the Site.
Settlement Agreement and Site Release - 5
C. The Parties further agree that Kent accepts the terms of the Agreement, in part,
recognizing the affirmative actions taken by the Insurers in investigating the claims against Kent
related to the Site and the Insurers' efforts to resolve all liability under the Policies, both
conducted in a manner consistent with its obligations to Kent under Washington law, without the
need for litigation.
d. The Parties agree not to seek, in any manner, reimbursement of, or contribution to,
the monies paid by them under this Agreement, from each other, or each other's predecessors,
affiliates, corporations, parent corporations, subsidiaries, successors in interest, representatives,
reinsurers, attorneys, employees, employers, agents, officers, directors or shareholders by way of
subrogation, contribution, defense, indemnity or any other alleged theory of or right to recovery.
5. Agreement By Kent
a. Kent represents and warrants that it may have sustained or will sustain unknown or
unforeseen damages, injuries, losses and liabilities directly or indirectly related to the matters
released herein as of the date hereof, and that additional or different facts than those which they
know or believe to be true may be discovered. Nevertheless, Kent agrees the release given in this
Agreement shall apply not only to all currently known and anticipated results of the matters
released, but also to those currently unknown and unanticipated claims, resulting directly or
indirectly from any and all liability for any and all extra-contractual claims, claims in tort, claims
under contract, claims for attorneys' fees and expenses, demands, rights, liabilities, damages,
losses and causes of action of whatever kind and nature, now existing or hereafter arising from
the Site, even if not discovered or brought to the attention of Kent until after the effective date of
this Agreement.
b. Kent agrees that the obligations set forth in this Agreement are not joint
obligations of any of the Insurers who are bound by the Agreement and that breach of the
Agreement by one of the Insurers does not void the Agreement as to other of the Insurers.
GENERAL CONDITIONS
6. Kent represents and warrants that after a good faith investigation it has determined that
Kent is the only known entity or individual entitled to recover for any damages under such claims
and it has not and will not in any manner assign, transfer, convey or sell, or purport to assign,
transfer, convey or sell to any entity or person any cause of action, any chose in action, or part
thereof, arising out of or connected with the matters released herein, and that they are the only
known persons or entities entitled to recover for any damages under such claims, causes of action,
actions, and rights. Kent represents and warrants that no subrogation of any cause of action,
chose in action, or part hereof, has taken place.
Settlement Agreement and Site Release - 6
7. Kent further represents, warrants and agrees that they will not in any way voluntarily assist
any other person or entity in the establishment of any claim, cause of action, action or right
against the Insurers in any way relating to the investigation, handling, defense, or settlement of
claims relating to or arising from the claims governed by this Agreement and the releases
contained herein. Except as otherwise provided, Kent agrees to hold harmless and indemnify the
Insurers for any breach by Kent of any of the foregoing representations and warranties, such
indemnity to include, but not be limited to, the Insurers' attorneys' fees and costs.
8. This Agreement is the result of a compromise and accord and shall not be considered an
admission of liability or responsibility. This Agreement is a compromise and settlement of
disputed claims, is the product of arms length negotiations.
9. This Agreement prevails over prior communications regarding the matters contained
herein between the Insurers and Kent or their representatives. The Agreement was drafted by
counsel for the Insurers and Kent and there shall not be a presumption or construction against the
Insurers or Kent, each expressly waiving the doctrine of contra proferentum.
10. This Agreement is an integrated agreement and contains the entire agreement regarding
the matters herein between the Insurers and Kent and no representations, warranties, or promises
have been made or relied on by the Insurers or Kent other than as set forth herein.
11. This Agreement is intended to confer rights and benefits only on the Insurers and Kent and
is not intended to confer any right or benefit upon any other person or entity. No person or entity
other than the Insurers and Kent shall have any legally enforceable right under this Agreement.
All rights of action for any breach of this Agreement are hereby reserved to the Insurers and Kent.
12. This Agreement is without prejudice or value as precedent and shall not be used in any
proceeding or hearing to create, prove, or interpret the obligations under, or terms and conditions
of, any other agreement or any insurance policy.
13. This Agreement is not a policy of insurance, and the Insurers and Kent do not intend that
it will be interpreted as such.
14. This Agreement shall be deemed to fall within the protection afforded compromises and
offers to compromise by Rule 408 of the Federal Rules of Evidence. The existence of this
Agreement, and terms thereof, and any acts or omissions related thereto, shall not be used by way
of discovery, evidence, offer of proof, or otherwise, except in any action or proceeding to enforce
or defend the terms of this Agreement.
15. The Parties represent and warrant to the extent applicable:
a. that they have taken all necessary corporate and/or legal actions to duly approve
Settlement Agreement and Site Release - 7
the making and performance of the Agreement and that no further corporate or other approval is
necessary;
b. that the making and performance of this Agreement will not violate any provision
of law or of their respective articles of incorporation or by-laws;
C. that they have read this Agreement and know the contents hereof, that the terms
hereof are contractual and not by way of recital, and that they have signed this Agreement of their
own free act;
d. that in making this Agreement, they have obtained the advice of legal counsel; and
e. that the Mayor of the City of Kent has the authority to execute this Agreement on
behalf of all of Kent as identified in the Agreement.
16. Wherever possible, each provision of the Agreement shall be interpreted in such manner as
to be valid under applicable law, but if any provision of the Agreement shall be invalid or
prohibited thereunder, such provision shall be ineffective to the extent of such prohibition without
invalidating the remainder of such provision or the remaining provisions of the Agreement.
17. Each of the terms of the Agreement is binding upon and for the benefit of the Insurers and
Kent. Any assignment of the Agreement by either Party without the written permission of the
other Parry, except by operation of law, shall be void and of no effect.
18. The Insurers and Kent agree that this Settlement Agreement and its terms and conditions
are confidential to the extent permitted by law and shall not be disclosed to anyone without the
written consent of all Parties to this Settlement Agreement. Notwithstanding the foregoing,
written consent shall not be required for any disclosure (a) made pursuant to court order or (b)
made to an attorney, reinsurer, auditor, representative, director or employee of the Insurers or
Kent, provided that any such disclosure is made in the furtherance of a financial or business
interest of the Insurers or Kent and is not part of a general publication or dissemination, or (c)
made pursuant to the Parties' obligations under the Public Disclosure Laws or (d) made pursuant
to a valid and proper subpoena or production request directed to Kent or(e)by a Party to enforce
the terms of this Agreement or (f) by Kent upon a determination by a court that such disclosure is
a prerequisite to a judgment in favor of Kent against any other person with respect to claims
released by this Agreement. Any person to whom a disclosure is made under (b) or (d) shall be
advised of the confidentiality requirement.
19. This Agreement is entered into, and shall be construed and interpreted in accordance with,
the laws of the State of Washington.
Settlement Agreement and Site Release- 8
20. This Agreement may be executed in two (2) or more original or facsimile counterparts,
each of which shall be deemed an original but all of which together shall constitute one
instrument.
21. In the event of litigation to enforce the terms of this Agreement, costs and reasonable
attorney fees shall be awarded to the substantially prevailing party.
22. Nothing in this Agreement shall affect the rights and obligations of the parties as
established in the Defense Funding Agreement previously entered into between and among the
Parties.
Settlement Agreement and Site Release - 9
Century Indemnity as successor to CCI Insurance Company,
as successor to Insurance Company of North America.,
Century Indemnity as successor to Cigna Specialty
Insurance Company formerly known as California Union
Insurance Company, Indemnity Insurance Company of
North America (herein collectively referred to as "CIGNA
Companies")
Dated: By:
Its:
Safeco Insurance Company of America
General Insurance Company of America
First National Insurance Company of America
(herein collectively referred to as"SAFECO")
Dated: By:
Its:
Guarantee Insurance Company
Dated: By:
Its:
Lincoln Insurance Company
Dated: By:
Its:
City of K
Dated: By:
Its:
Settlement Agreement and Site Release- 10
Century Indemnity as successor to CCI Insurance Company,
as successor to Insurance Company of North America,
Century Indemnity as successor to Cigna Specialty
Insurance Company formerly known as California Union
Insurance Company, Indemnity Insurance Company of
North America (herein collectively referred to as "CIGNA
Companies")
Dated: By:
Its:
Safeco Insurance Company of America
General Insurance Company of America
First National Insurance Company of America
(herein collectively referred to as"SAFECO")
Dated: BY
Its:
Guarantee Insurance Company
Dated: By:
Its:
Lincoln Insurance Company
Dated: BY
Its:
City of Kent
Dated: By:
Its:
Settlement Agreement and Site Release - 10
Century Indemnity as successor to CCI Insurance Company,
as successor to Insurance Company of North America,
Century Indemnity as successor to Cigna Specialty
Insurance Company formerly known as California Union
Insurance Company, Indemnity Insurance Company of
North America (herein collectively referred to as "CIGNA
Companies")
Dated: BY:
Its:
Safeco Insurance Company of America
General Insurance Company of America
First National Insurance Company of America
(herein collectively referred to as"SAFECO")
Dated: BY:
Its:
Guarantee Insurance Company
Dated: z9 By;
Its:
Lincoln Insurance Company
/ gyp_
Dated: Lh��� BY: Ae4
Its: v0-
City of Kent
Dated: BY:
Its:
Settlement Agreement and Site Release - 10
Century Indemnity as successor to CCI Insurance Company,
as successor to Insurance Company of North America,
Century Indemnity as successor to Cigna Specialty
Insurance Company formerly known as California Union
Insurance Company, Indemnity Insurance Company of
North America (herein collectively referred to as "CIGNA
Companies")
Dated: By:
Its:
Safeco Insurance Company of America
General Insurance Company of America
First National Insurance Company of America
(herein collectively referred to as"SAFECO")
Dated: By:
CO-Its: \�-�nVl
Guarantee Insurance Company
Dated: BY
Its:
Lincoln Insurance Company
Dated: BY
Its:
City of Kent
Dated: By:
Its:
Settlement Agreement and Site Release - 10
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ESSEX INSURANCE COMPANY Creator Bank
on behalf of Richmond,virginla 88-02
LINCOLN INSURANCE COMPANY 510
P.O. BOX 2010 001141
GLEN ALLEN, VIRGINIA 23058-2010
VENDOR I.D. K NO. D [AY THIS AMOUNT
001141 01-16-98 ******$40,437.50
PAY THE SUM OF FORTY- THOUSAND FOUR HUNDRED *****
*****THIRTY-SEVEN DOLLARS AND 50 CENTS*****
Pay to
the order of
The City of Kent and its attorney Greg McElroy
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