HomeMy Public PortalAbout2001 Settlement Agreement by CG Rebozo, VKB, George Shalhub and BP Corporation North America.tifSETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT made this .7 day of November, 2001, by and
between Charles G. Rebozo Revocable Trust (the "Trust"), The Village of Key Biscayne (the
"Village"), and George Shahlub, and BP Corporation North America Inc. ("BP"), which was
sued as BP Amoco Corporation, a/k/a Amoco, and Amoco Oil Company (George Shahlub and
BP collectively referred to as the "Defendants").
WHEREAS, the Village purchased a certain property at 560 Crandon Boulevard, Key
Biscayne, Florida (the "Property") from the Charles G. Rebozo Revocable Trust on September
21, 2000, and received the assignment of all rights and claims of the Charles G. Rebozo
Revocable Trust against Defendants, which continue to be held by the Village.
WHEREAS, the Defendant George Shahlub is the current owner and operator of a
CITGO service station at 580 Crandon Boulevard, Key Biscayne, Florida (the "Adjoining
Property") and a former operator of an Amoco gas station on the same property, and Defendant
BP is a former owner of the Adjoining Property.
WHEREAS, in the past there was a release of petroleum hydrocarbons from one or
more of the underground storage tank systems at the Adjoining Property which was discovered
in 1984 and subsequently qualified for funding under the Early Detection Incentive ("EDI")
Program.
WHEREAS, the Village contends there have been other releases on the Adjoining
Property that have migrated and may migrate in the future onto the Property. Any releases of
petroleum hydrocarbons on the Adjoining Property prior to the sale of the Property to George
Shalhub which migrated or may migrate in the future onto the Property from the Adjoining
Property shall be referred to as the "Release".
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WHEREAS, Defendants specifically deny that any discharges occurred from the
storage tank system on the Adjoining Property which are not eligible for the EDI Program.
WHEREAS, a separate release or releases of petroleum hydrocarbons unrelated to the
Adjoining Property occurred from one or more of the underground storage tank systems
formerly located on the Property. An investigation was done and partial corrective action
(including the removal of contaminated soil) was performed by Plaintiffs and/or their
predecessors.
WHEREAS, assessment activities conducted on the Property in 1999 and 2000
indicated the existence of petroleum constituents on a portion of the Property adjoining the
Amoco Station Property, as documented in a report entitled "Clark Engineering Phase I and
Phase II Environmental Site Assessment".
WHEREAS, In February, 2000 Thomas H. Wakefield, Mary R. Bouterse and Charles
Fred Rebozo, Trustees of the Charles G. Rebozo Revocable Trust (the "Rebozo Trust") filed a
lawsuit in the United States District Court for the Southern District of Florida, captioned
Thomas H. Wakefield, Mary R. Bouterse and Charles Fred Rebozo, Trustees of the Charles G.
Rebozo Revocable Trust v. George Shahlub and BP Amoco Corporation (Civil Action No. 00-
634 CIV-King) (the "Lawsuit") asking for among other things, damages and the cleanup of the
portion of the Property impacted by the release on the Amoco Station Property.
WHEREAS, in February 2001 the Village moved for and was granted an order
substituting the Village for the Rebozo Trust as Plaintiff in the above action.
NOW THEREFORE, in consideration of the above recitals, and the mutual agreements
and covenants set forth herein, and other good and valuable consideration, the receipt and
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sufficiency of which is hereby acknowledged, The Village and George Shahlub, BP Amoco
Corporation, a/k/a Amoco, and Amoco Oil Company do hereby agree as follows:
1. Payment. Within thirty (30) days of the execution of this Agreement by all of
the parties and delivery of a fully executed copy of the agreement to BP, BP agrees to pay the
Village the sum of $65,000.00 by delivery of a check made payable to Lewis, Longman &
Walker, P.A., Trust Account.
2. Cleanup and Corrective Action. Subject to the provisions of this Agreement,
BP shall within sixty (60) days of the execution of this Agreement, initiate at their expense the
Cleanup and Corrective Action of the portion of the Release on the Property in accordance with
the requirements of The Florida Department of Environmental Protection ("FDEP"), Miami -
Dade County Environmental Resources Management ("DERM") or other regulatory agency with
jurisdiction over the Release under applicable environmental laws regarding the Release so that
the portion of the Release on the Property meets and remains at or below the groundwater and
soil cleanup target levels established by FDEP as set forth in F.A.C. Chapter 62-770 entitled
"Petroleum Contamination Cleanup Criteria". BP will continue and expeditiously proceed with
the Cleanup and Corrective Action until such time as FDEP, DERM or other agency with
authority over the site issues a "Site Rehabilitation Completion Order ("SRCO") or similar
closure designation for the portion of the Release on the Property. It is the intent of the parties
that the Defendants perform the Cleanup and Corrective Action in a diligent and expeditious
manner so as to minimize any impact on the Village's development of the .Property and the
constructions of improvements thereon.
a. "Cleanup and Corrective Action" means the investigation, assessment, cleanup,
removal, containment, isolation, treatment and/or monitoring of the Release on
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the Property, or the taking of such other actions as may be necessary to prevent,
minimize, or mitigate injury to the public health, safety or welfare, the
environment or natural resources, which are required by the FDEP, DERM or
other regulatory agencies with jurisdiction over the Release under applicable
environmental laws regarding the Release. Once the cleanup of the portion of
the Release on the Property has been completed, Corrective Action may include
monitoring, if required by FDEP, DERM or other regulatory agencies with
jurisdiction over the Release under applicable environmental laws regarding the
Release.
b. It is anticipated by the parties, but not required, that the actions to be taken by
BP under this paragraph may include:
i. Additional assessment activities, including the possible installation of
additional groundwater monitoring wells;
ii. Possible use of technologies proposed in the Limited Contamination
Assessment Report ("LCAR") dated December 27, 2000 (such as air
sparging or low flow oxygen injection), to address the dissolved
hydrocarbon levels in the groundwater under the Adjoining Property;
iii. The possible use of phytoremediation along a portion of the boundary
between the Property and the Adjoining Property in order to provide a
barrier to the possible migration of dissolved hydrocarbons in groundwater
to the north of the Adjoining Property; and
iv. Remediation of contaminated soils, if any, that are contributing
groundwater contamination.
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c. Subject to applicable laws, and subject to the Defendant's obligations hereunder
and the provisions of this agreement, BP shall determine the nature of the
Cleanup and Corrective Action, the manner in which the Cleanup and
Corrective Action are to be performed, and all other issues related to the
Cleanup and Corrective Action; provided, however, that BP shall coordinate
their activities on the Property, if any, with the Village as long as the Village
owns the Property. BP will not install any equipment, structure or fixture on the
Property as part of the Cleanup and Corrective Action without the approval of
the Village; such approval shall not be unreasonably withheld. The Village
shall have the right to approve the location of monitoring wells, soil borings or
Corrective Action equipment to be installed on the Property; however, such
approval shall not be unreasonably withheld. In addition, the Village shall be
notified before the installation of any equipment, structure or fixture on the
Adjoining Property as part of the Cleanup and Corrective Action (unless it is the
replacement with substantially identical equipment, structure or fixture) so that
the Village has the opportunity to object to FDEP and/or DERM regarding the
installation of such items. However, the approval by FDEP or DERM of a plan
requiring the installation of such items shall create a rebuttable presumption that
such items may be installed. Subject to applicable laws, and subject to BP's
obligations hereunder and the provisions of this agreement, the Village shall
provide access to the Property and Shalhub shall provide access to the
Adjoining Property to allow BP to complete the Cleanup and Corrective Action
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for the Property. All costs incurred in the performance of the Cleanup and
Corrective Action shall be borne by BP.
3. Mutual Cooperation:
a. Defendants agree to use reasonable efforts to ensure that the Cleanup
and Corrective Action will not materially interfere with the Village's use
and development of the Property.
b. The Village agrees that it will use reasonable efforts to operate the
Property in a manner which does not interfere with the Cleanup and
Corrective Action or impair BP's ability to utilize available cleanup
funds (such as the FDEP Preapproval Program funded by the Inland
Protection Trust Fund) or recover funds from any underground storage
tank reimbursement program. The Village's use of the Property shall
not conflict with the rights granted to BP in this Agreement.
c. Defendant Shalhub agrees to provide BP with access to the Adjoining
Property to the extent not inconsistent with its other contractual
agreements with BP, and to otherwise cooperate with BP and its
contractors in order to complete the Cleanup and Corrective Action.
d. The Village, any tenants on the Property, and any subsequent owners of
the Property (collectively the "Owner") shall provide BP and BP's
representatives with reasonable access to the Property, as well as
adjacent areas that need to be accessed in order to conduct the Cleanup
and Corrective Action or to maintain and install any Cleanup and
Corrective Action equipment on the Property until the Cleanup and
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Corrective Action is completed pursuant to paragraph (2) of this
Agreement.
e. Defendant Shalhub, and any subsequent owners of the Adjoining
Property shall provide BP and BP's representatives with reasonable
access to the Adjoining Property, as well as adjacent areas that need to
be accessed in order to conduct the Cleanup and Corrective Action or to
maintain and install any Cleanup and Corrective Action equipment on
the Adjoining Property.
f. The Village and Defendant Shalhub acknowledge that the Cleanup and
Corrective Action for the Property may require the following: installing,
sampling, monitoring and decommissioning of wells; taking soil borings
or soil samples; installing and maintaining Corrective Action equipment
and related improvements (including, if necessary, an above -ground
storage structure, in a location reasonably acceptable to the owner of the
affected property, to house and protect equipment); excavating soils, if
necessary and appropriate; and short-term storage (not to exceed thirty
(30) days) of excavated soils or groundwater on the Property and/or
Adjoining Property (in a location reasonably acceptable to the property
owner). BP will use its reasonable efforts to have Cleanup and
Corrective Action equipment placed on the Adjoining Property,
g. During the term of this Agreement, the Village shall not obstruct,
excavate or improve the area that the Village contends has been
impacted by the Release ("Future Development") without first notifying
BP. As a courtesy, the Village shall forward any preliminary and/or
final plans of Future Development affecting the Designated Area at least
fifteen (15) days before commencing any demolition, excavation or
construction. If within fifteen (15) days of receiving such notice BP
indicates to the Village that it needs additional time to obtain approvals
or to take steps necessary to protect any monitoring wells or other
Cleanup and Corrective Action equipment on the Property, the Village
shall provide BP with a reasonable time, not to exceed an additional
sixty (60) days, to obtain approvals or to take steps necessary to protect
any monitoring wells or other Cleanup and Corrective Action equipment
on the Property.
h. The Village and Defendant Shalhub shall not obstruct or prevent BP
from performing the Cleanup and Corrective Action at reasonable times
and they shall use reasonable efforts to ensure that any tenants,
subtenants, and/or other users of the Property and Adjoining Property do
not prevent BP from performing such Cleanup and Corrective Action.
The Village and Defendant Shalhub shall not damage any of the Cleanup
and Corrective Action equipment and shall use reasonable efforts to see
to it that their tenants, subtenants, and/or other users of the Property and
Adjoining Property do not damage the Cleanup and Corrective Action
equipment. The Village shall pay BP for costs incurred to replace, or
repair any damage to, any monitoring wells or other Cleanup and
Corrective Action equipment if the damage is caused by the negligence
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or intentional acts of the Village or its agents. Defendant Shalhub shall
pay BP for costs incurred to replace, or repair any damage to, any
monitoring wells or other Cleanup and Corrective Action equipment if
the damage is caused by the negligence or willful misconduct of
Defendant Shalhub. The Village and Defendant Shalhub further agree
that no water wells, whether for potable, irrigation, remediation or other
use, with exception of an investigation well, will be installed on any part
of the Property or the Adjoining Property without the prior written
consent of BP, not to be unreasonably withheld.
4. Transfer.
a. Transfer by the Village. If the Village decides to transfer title to the
Property or ground lease all of the Property to a third party, then
Plaintiffs and the Village shall notify Defendants of its intent to transfer
or grant a lease, and shall transfer any rights in the Property subject to
BP's rights contained herein.
b. Transfer by Shalhub. If Shalhub decides to transfer title to the
Adjoining Property or ground lease all or any portion of the Adjoining
Property to a third party, then Shalhub notify BP of its intent to transfer
or grant a lease, and shall transfer any rights in the Property subject to
BP's rights contained herein.
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5. Indemnitv.
a. Indemnity of the Village and Trust: Defendants shall indemnify, defend
(with counsel selected by Defendants but reasonably acceptable to the
party seeking indemnification) and hold the Village and Trust harmless
from any Damages proximately caused by the migration of the Release
from the Adjoining Property to the Property. Defendants shall also
indemnify, defend (with counsel selected by Defendants but reasonably
acceptable to the Party seeking indemnification) and hold the Village
and Trust harmless from any Damages proximately caused by the
performance or completion of the Cleanup and/or Corrective Action on
the Property. "Damages" shall refer to claims by third parties, i.e., non -
signatories to this Agreement.
b. Indemnification Procedure: If Village or Trust is presented with a
claim by a third party or the Village or Trust suffers Damages subject to
indemnification from Defendants under this Agreement, the Village or
Trust shall give reasonable notice in writing to Defendants. Reasonable
notice shall depend upon the nature and circumstances of the claim.
Any claim submitted by the Village or Trust shall be accompanied by
reasonably available supporting information and documentation.
i. Claims. In any claim for damages by the Village or Trust,
Defendants shall have sixty (60) days to investigate
("Investigation Period") the claim and the Plaintiffs, Trust or
Village shall promptly answer all reasonable requests made by
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Defendants during the Investigation Period. After the
Investigation Period, Defendants shall notify the claimant of
Defendants decision to pay the claim, deny the claim or offer a
compromise settlement.
ii. Third Party Claims. If a the Village or Trust contends that a
claim by a third party requires defense, the Village or Trust shall
tender the third party claim to Defendants with sufficient notice
so that Defendants will have an adequate opportunity to defend
the claim. After notification, Defendants shall have ten (10) days
to notify claimant whether Defendants accept the tender of the
third party claim. If Defendants accept the tender of the claim.
Defendants shall immediately undertake the defense, at its
expense, with counsel selected by Defendants but reasonably
acceptable to the claimant. The Village or Trust shall cooperate
reasonably in such defense.
c. Defendant Shalhub's obligations under this paragraph shall not extend to
any discharges from storage tanks systems that occurred prior to October
15, 1997.
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6. Settlement and Release of Claims:
a. Settlement and Release of Claims by Plaintiff: As a condition precedent
to this Agreement, the Village agrees to dismiss with prejudice all
claims asserted against the Defendants in the Lawsuit. The Village
hereby releases, discharges and covenants not to sue the Defendants,
their subsidiaries, parents, officers, directors, stockholders, affiliates, and
its and their agents, attorneys, servants, employees, former employees,
representatives, predecessors, successors, and assigns, relating to matters
which were raised or could have been raised in that action filed in the
United States District Court for the Southem District of Florida
captioned Thomas II. Wakefield, Mary R. Bouterse and Charles Fred
Rebozo, Trustees of the Charles G. Rebozo Revocable Trust v. George
Shahlub and BP Amoco Corporation a/k/a Amoco and Amoco Oil
Company (Civil Action No. 00-634 CIV-King) and The Village of Key
Biscayne v. George Shahlub and BP Amoco Corporation a/k/a Amoco
and Amoco Oil Company (Civil Action No. 00-634 CIV-King) except
for claims the Village may have against the Defendants for breach of
this Agreement which claims are specifically exempt from this release.
b. Settlement and Release of Claims by Defendants: As a condition
precedent to this Agreement, Defendants hereby release, discharge and
covenant not to sue for any and all claims, debts, demands, actions, suits,
damages and costs that defendants now have, ever had or may have
against the Plaintiffs, including but not limited to the Village, and its
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agents, attorneys, servants, employees, former employees,
representatives, predecessors, successors, and assigns, relating to matters
which were or could have been raised in that action filed in the United
States District Court for the Southern District of Florida captioned
Thomas H. Wakefield, Mary R. Bouterse and Charles Fred Rebozo,
Trustees of the Charles G. Rebozo Revocable Trust v. George Shahlub
and BP Amoco Corporation a/k/a Amoco and Amoco Oil Company
(Civil Action No. 00-634 CIV-King) and The Village of Key Biscayne
v. George Shahlub and BP Amoco Corporation a/k/a Amoco and Amoco
Oil Company (Civil Action No. 00-634 CIV-King) except for claims the
Defendant may have against the Village for breach of this Agreement
which claims are specifically exempt from this release.
7. Disputes, Negotiations and Litigation. The procedures set forth are mandatory.
a. Good Faith Negotiation: The Village and the Defendants will attempt in
good faith to resolve promptly any dispute arising out of or relating to
this agreement, including any dispute involving an indemnification
request. In the event of a dispute, the Defendants and the Village will
meet to exchange relevant information and attempt to resolve the
dispute. If the matter has not been resolved within thirty (30) days,
either party may initiate mediation of the controversy.
b. Mediation by the Center for Public Resources: Mediation shall be
handled by the Center for Public Resources ("CPR") pursuant to CPR's
Mediation Procedure (Revised and effective as of April 1998).
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•
Expenses associated with the mediation process, including the cost of an
independent mediator to be selected by both parties will be paid jointly
by the parties.
c. Litigation: In the event the Parties are not able to resolve their disputes
through good faith negotiation and mediation, then either party may
pursue such disputes through litigation in The United States District
Court for the Southern District of Florida or the Circuit Court for the
Eleventh Judicial Circuit of Florida located in Dade County, Florida.
d. Costs/Fees of Litigation: The prevailing party will be entitled to recover
its costs and expenses of litigation, including reasonable attorney's and
expert's fees, from the non -prevailing party.
e. Punitive Damages: It is understood that neither party may be entitled to
an award for punitive damages arising from any disputes under this
Agreement.
8. Effectiveness: Termination.
a. This agreement will become effective upon the dismissal with prejudice
of all claims against the Defendants in the Lawsuit.
b. The access and indemnification terms of this Agreement will terminate
120 days after the issuance of a SRCO or similar closure designation for
the portion of the Release on the Property.
c. After the termination of this Agreement in accordance with its terms, if
FDEP requires additional Corrective Action on the Property as a result
of the Release, then the provisions of this Agreement will be re -activated
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and defendants shall undertake additional Corrective Action of the
Release if required pursuant to its terms.
9. Notices: Notices provided under this agreement must be in writing. Faxes are
acceptable, and shall be addressed as follows:
To BP:
Mr. Gary Umbehagen
Environmental Manager
BP Corporation North America Inc.
2475 Northwinds Parkway, Suite 400
Alphretta, GA 30004
William Maseth
Attorney
BP Corporation North America Inc.
Law Department
1 West Pennsylvania Avenue, Suite 905
Towson, MD 212045029
(410) 821-4564
(410) 821-4566 fax
To: George Shahlub
To Plaintiffs:
Village of Key Biscayne
85 West McIntyre Street
Key Biscayne, FL 33149
Attention: C Samuel Kissinger
Village Manager
Facsimile: (305) 365-8936
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With a Copy to:
Mr. Richard C. Gaskins, Jr.
Hamilton, Gaskins, Fay & Moon, PLLC
2020 Charlotte Plaza
201 S. College Street
Charlotte, NC 28202-6001
(704) 227-1046
(704) 344-1483 fax
With a copy to:
Robert D. Fingar, Esq.
J. Kendrick Tucker, Esq.
Huey, Guilday & Tucker, P.A.
Post Office Box 1794
Tallahassee, Florida 32302
Facsimile: (850) 222-2593
With a copy to:
Kevin S. Hennessy
1700 Palm Beach Lakes Blvd
Suite 1000
West Palm Beach, FL 33401
Facsimile: (561) 640-8202
The Parties executed this Agreement on the dates set forth below.
Village of Key Biscayne, A Florida
Municipal Corporation
By:
C. Samuel Kissinger
Village Manager
Approved as to legal forth and
Sufficiency
By:
1 omey
Date
Thomas H. Wakefield Mary R. Bouterse and Charles Fred Rebozo, Trustees of the Charles G.
Rebozo Revocable Trust under Revocable Trust Agreement dated January 20, 1989, as
modified and amended
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Thomas /H. Wakefield, T stee
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Charles Fred Rebozo, trustee
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