Okaloosa County BOCC — December 4, 2012 — Settlement Agreement — reading text

SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the “Settlement Agreement”) is entered into this ____ day of _______________, 2013, by and between Paul S. Hsu and Majes Hsu, his wife, (the “Property Owners”) and Okaloosa County, Florida, a political subdivision of the State of Florida (the “County”). RECITALS WHEREAS, the Property Owners are the owners of certain real property located at 70 Ready Avenue, Fort Walton Beach, Okaloosa County, Florida as more particularly described in Attachment A (the “Property”); and WHEREAS, the Property was contaminated by petroleum or some other contaminate which had originated from a source occurring off of the Property itself; and WHEREAS, it is alleged that the source of the contaminate was property owned by Okaloosa County; and WHEREAS, as a result of the contamination, the Property was placed on the state-funded priority cleanup list of the Florida Department of Environmental Protection (FDEP Facility ID 468623645) and designated for remediation; and WHEREAS, the Property Owner, the County and the Florida Department of Environmental Protection (the “FDEP”) have been working together to address remediation issues relating to the Property; and WHEREAS, various options have been considered as to the remediation of the Property and summarized in a document entitled “Remediation Options Cost Comparison for Off-Site Contamination,” attached hereto as Attachment B; and WHEREAS, the Parties to this Settlement Agreement and the FDEP have agreed to remediation Option 3 which requires the demolition of the building on the Property and remediation by removal of chemically impacted media (i.e., soil and groundwater) from the site; and WHEREAS, the site will be fine-graded to match the existing site 1 conditions of the adjacent non-disturbed areas, using clean fill and overburden removed from the site prior to remediation activities, once impacted media have been removed and confirmation of compliance procedures are complete; and WHEREAS, to facilitate the selection of remediation Option 3 by the FDEP, additional compensation is required to be contributed to allow the State of Florida to select this remediation Option; and WHEREAS, to facilitate the selection of remediation Option 3, the Parties to this Settlement Agreement seek to provide for the additional compensation and to resolve any remaining issues as to liability relating to the contamination of the Property; and WHEREAS, the Property Owner and the County, in consideration of this additional compensation, desire to fully and finally settle all claims that have arisen or could arise related to the contamination on the Property resulting from the contamination (the “Claim”). NOW THEREFORE, in consideration for the mutual promises contained herein, the Parties agree as follows: ARTICLE I: RECITALS 1.1 The recitals set forth above are true and correct and are incorporated as essential terms of this Settlement Agreement. ARTICLE II: PARTIES’ RESPONSIBILITIES 2.1 FINANCIAL COMPENSATION FOR BUILDING FROM THE COUNTY A. The County shall pay to the Property Owners compensation in the amount of Five Hundred Fifty Thousand Dollars ($550,000) as full and complete compensation for any loss resulting from the demolition of the building on the Property and for any damage that may have resulted to the Property. B. Such compensation shall be paid to the Property Owner by the County in three annual payments under the following schedule: 2  1. An initial payment of One Hundred Eighty-five Thousand Dollars ($185,000) payable within sixty (60) days of the approval of remediation Option 3 by the FDEP and under the terms set forth herein (the “Initial Payment”). 2. A second payment of One Hundred Eighty-Five Thousand Dollars ($185,000) made payable within one (1) year of the date of the Initial Payment. 3. A third and final payment of One Hundred Eighty Thousand Dollars ($180,000) made payable within two (2) years of the date of the Initial Payment. C. The terms and conditions of this Settlement Agreement are contingent upon the approval of remediation Option 3 by the FDEP and its agreement to a remediation strategy and process substantially as set forth in Section 2.2 below. 2.2 REMEDIATION STRATEGY A. Remediation Selection. This Settlement Agreement is contingent upon the selection of remediation Option 3 as the preferred remediation for the Property by the FDEP and its agreement to a remediation strategy and process substantially as set forth below. B. Building Demolition. The building on the Property will be demolished as part of the remediation strategy. C. State Compensation. The State of Florida, through FDEP, will request funding in a total amount of $250,000, which, if granted, will be paid to the Property Owners for compensation for the loss of the building. D. Relocation of tenants. The relocation of any and all tenants, materials and/or equipment that are not an integral component of the building and the cost associated with that relocation will be the responsibility of the Property Owners. 3 E. Utilities. Property Owners will be responsible for disconnecting all utilities to the building. F. Demolition and disposal of the building and slab. The FDEP will be responsible for the demolition of the building, slab and adjacent ancillary improvements (e.g., parking lot) and disposal of this debris in order to accommodate remediation activities. G. Excavation and staging of clean overburden. The FDEP will provide or ensure the excavation and verification monitoring of the clean overburden. The County will provide an appropriate staging area for the clean overburden, if necessary. H. Excavation of contaminated soil. The FDEP will provide or ensure that contaminated soil is properly excavated, transported, and treated or disposed. If the FDEP determines it necessary, the County will provide the treatment area. I. Backfill excavation with clean soil. The FDEP will provide or ensure the excavated area is properly backfilled with clean soil. Additionally, the backfill will be compacted to prevent erosion. J. Contaminated groundwater. The FDEP will provide or ensure that contaminated groundwater that is extracted is treated and properly disposed. K. Heavy Equipment. The County would assist in providing heavy equipment, such as Loaders, Excavators, Backhoes and the like, if available, to assist in the demolition and disposal of the building and slab, excavation and staging of clean and contaminated soils, and backfill and grading. L. Sampling and Analysis. Samples collected to evaluate or verify remediation objectives will be the responsibility of the FDEP. Monitoring costs to verify long-term remediation effectiveness will also be FDEP’s responsibility. M. Remediation and site close-out documentation. All documentation related to the planning, design, construction, monitoring and close-out of the site will be the responsibility of the FDEP. 4  N. Remediation Timeline. The County will make a good faith effort to facilitate the remediation process so that the site will be ready for construction by April 15, 2013, to the extent that will be consistent with the procedures and processes of the State and County. ARTICLE III: RELEASE 3.1 Upon the FDEP’s approval of remediation Option 3, the Property Owner shall execute a release substantially in the form of the Release attached hereto as Attachment C (the “Release”). The Release shall release, acquit, satisfy, and discharge the County from all past and present claims relating to the Claim and to the Property and its contamination, including, but not limited to causes of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever in law or in equity, known or unknown, which the Property Owner had, or now has against the County by reasons of any matters asserted in or related to the Property and its contamination and the Claim. ARTICLE IV: MISCELLANEOUS 4.1 Each party shall bear its own attorneys’ fees and costs. 4.2 The parties acknowledge that they have had the advice of counsel of their own selection in connection with the terms and conditions of this Settlement Agreement; that they have read and understand the terms and conditions of this Settlement Agreement; that they are entering into this Settlement Agreement of their own free will; and that they intend to be bound by the terms hereof. 4.3 The parties agree that there are no promises or agreements, oral or otherwise, inducing entry into this Settlement Agreement. The parties are relying only on the express terms, conditions and agreements set forth herein. The parties further agree that any promise or agreement, not expressly set forth in writing and signed by all parties, cannot be relied upon and will not be valid or enforceable. 4.4 In the event any party hereto is required to file suit to enforce the terms and conditions of this Settlement Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs against the non-prevailing party. 5 4.5 This Settlement Agreement constitutes the compromise of a disputed claim and the entry into this Settlement Agreement shall not be deemed to be an admission of liability on the party of any party. BOARD OF COUNTY COMMISSIONERS OKALOOSA COUNTY BY: _________________________ DON R. AMUNDS, Chair Date: ________________________ ATTEST: BY: ________________________ Clerk of Court PAUL S. HSU BY: _________________________ Date: _____________ PAUL S. HSU MAJES HSU BY:__________________________ Date:______________ MAJES HSU Signed, Sealed and Delivered in the presence of: Witnesses: 6  (Print Name) (Print Name) STATE OF FLORIDA COUNTY OF ________________ The foregoing instrument was acknowledged before me this ________ day of ________________, 2013, by PAUL HSU, who: (notary must check applicable box) • is personally known to me. • produced a current Florida driver's license as identification. • produced as identification. (SEAL) _______________________________ STATE OF FLORIDA COUNTY OF ________________ The foregoing instrument was acknowledged before me this ________ day of ________________, 2013, by MAJES HSU, who: (notary must check applicable box) • is personally known to me. • produced a current Florida driver's license as identification. • produced as identification. (SEAL) _______________________________ 7