Okaloosa County BOCC — April 27, 2013 — reading text

raised its offer to $82,346 after accepting our argument that all the lost passenger related revenue was tourist driven, and said they would consider another 20% if the County accepted this as a “full and final” offer. They also agreed to reimburse our expenses of $13,000 for a total of $98,815. The Airport staff believes this settlement has been negotiated in good faith by both parties accepting the BP Claims Office contention that their offer is based on the published ground rules agreed to by other government entities, and under which it settled numerous claims for the oil spill. OPTIONS: Approve, Reject or Table RECOMMENDATIONS: Accept the offer of $98,815 in full and final settlement and authorize the Chairman (by Resolution) to sign the approved agreement. RECOMMENDED BY: Packet Pg. 381  7.26 APPROVED BY: James D. Curry, County Administrator Packet Pg. 382  7.26.a PARTIAL RELEASE, SETTLEMENT, AND COVENANT NOT TO SUE 1. Definitions: For purposes of this Agreement, the following definitions shall apply, and in the case of defined nouns the singular shall include the plural and vice versa: a. “Agreement” means this Partial Release, Settlement, and Covenant Not to Sue. b. “Claimant” shall mean Okaloosa County Board of County Commissioners, Florida, a municipal corporation, individually and the Claimant’s Affiliates, solely with respect to any claims related to the Northwest Florida Regional Airport (VPS), the Destin Airport (DTS) and/or the Crestview/Bob Sikes Airport (CEW). Attachment: BP Claims Settlement (1464 : BP Claim Settlement) c. “Claimant’s Affiliates” shall mean Claimant’s subdivisions, agencies, associations, authorities, boards, bureaus, councils, departments, educational institutions or systems, components, public benefit corporations, public-private partnerships, or other instrumentalities of any kind, administrators, elected or unelected officials or officers, delegates, assigns, insurers, attorneys, or other agents of any kind. d. The verb “releases,” “released,” and its cognate forms shall mean all forms of acts or deeds to release, acquit, forever discharge, and covenant not to sue on any sort of claim. e. “Released Parties” includes all entities listed in Paragraph 5 below. f. “Losses” means all forms of losses, damages, costs, expenses, taxes, requests, royalties, rents, fees, profit shares, earning capacity, property damage, punitive damages, exemplary damages, economic damages, injuries, liens, remedies, debts, claims, causes of action, or liabilities. g. “Natural Resource Damages” means damages for injury to, destruction of, loss of, or loss of use of natural resources, including the reasonable costs of assessing the damage. h. “Incident” means the blowout of the Macondo well, all discharges of hydrocarbons or other substances from the Deepwater Horizon mobile offshore drilling unit owned by Transocean and/or the Macondo Well occurring on or after April 20, 2010, the explosion and fire on the Deepwater Horizon, the sinking of the Deepwater Horizon, containment efforts related to the Macondo Well, construction of the relief wells, and clean-up and remediation efforts, including the Vessels of Opportunity program, and all other responsive actions in connection with the foregoing events. i. “Claims” means the losses asserted by means of claims, demands, actions, and/or damages that Claimant may have as defined in Paragraph 2 below arising out of the Incident. j. “Released Claims” means all Claims that have been released in this Agreement. 1 Packet Pg. 383  7.26.a 2. In consideration of payment in the amount of Ninety-Eight Thousand Eight Hundred Fifteen Dollars and no/100 ($98,815.00) and previous payments made for claims referenced and released herein, Claimant hereby releases BP Exploration & Production Inc. (“BP”) as well as all Released Parties from and for any and all liabilities, claims, demands, actions, damages, or other claimed forms of relief that Claimant may have or purport to have solely with respect to the Northwest Florida Regional Airport (VPS), the Destin Airport (DTS) and/or the Crestview/Bob Sikes Airport (CEW).— whether asserted directly or indirectly through Claimant’s Affiliates or otherwise — for the recovery of any and all losses that Claimant has or may have, whether known or unknown, whether present or future, whether direct or indirect, and whether legal or equitable, arising from or relating in any way to the Incident (collectively defined as “Claims”), specifically reserving all other Claims Claimant has or may have that are not Attachment: BP Claims Settlement (1464 : BP Claim Settlement) related to the Northwest Florida Regional Airport (VPS), the Destin Airport (DTS) and/or the Crestview/Bob Sikes Airport (CEW). 3. This Agreement applies to all Claims regardless of the legal or equitable theory or nature under which they are based or advanced including (but not limited to) legal and/or equitable theories under any federal, state, local, and international law, and including (without limitation) statutory law, codal law, regulation, common law, or equity, and whether based in maritime law, strict liability, negligence, gross negligence, punitive damages, nuisance, trespass, and all other legal and equitable theories, whether existing now or arising in the future, arising out of or in any way relating to the Incident. By executing this Agreement, Claimant warrants and understands that it is forever giving up and discharging, without any right of legal recourse whatsoever, any and all rights it has or may have to the Released Claims against the Released Parties. 4. “Released Parties” includes anyone who is or could be responsible or liable in any way for the Incident or any damages related thereto, including (but not limited to) those liable for the Released Claims, whether a person, company or governmental entity, including (but not limited to) BP, the parties listed on Attachment “A” hereto, the federal Oil Spill Liability Trust Fund and any state or local fund, and each of their respective affiliates, including (but not limited to) their officers, directors, shareholders, employees, and agents. 5. Claimant represents and warrants that (i) its undersigned representative has authority to execute this Agreement on behalf of Claimant and Claimant’s Affiliates; (ii) it has not received any payment from any insurer or other party (other than BP) in connection with the Incident; and (iii) it has not sold or otherwise transferred or assigned any of the Claims, or any interests in such Claims. 6. Claimant will dismiss with prejudice within ten (10) days of executing this Agreement any litigation concerning any pending Claims filed by or on behalf of Claimant or Claimant’s Affiliates against BP or any other of the Released Parties provided such Claims are now defined as Released Claims. Claimant also will withdraw from any existing and will not join any new class actions or similar procedural devices concerning the Released Claims. 2 Packet Pg. 384  7.26.a 7. This Agreement is not intended to prevent any of the Released Parties from exercising their respective rights of contribution, subrogation, or indemnity under the Oil Pollution Act of 1990 (“OPA”) or any other law. As this Agreement is fully and completely resolving Claimant’s Released Claims under OPA, BP is hereby subrogated to any and all rights that Claimant has arising from the Incident for those Released Claims. 8. The payment(s) to Claimant is/are made without any admission of liability or wrongdoing by BP or any other Released Party and is/are made purely by way of compromise and settlement. 9. The provisions of this Agreement and all questions with respect to the construction and enforcement thereof and the rights and liabilities hereto shall be governed by, and Attachment: BP Claims Settlement (1464 : BP Claim Settlement) construed and enforced in accordance with, the laws of the State of Florida. Any and all disputes, cases, or controversies concerning this Agreement, including without limitation disputes concerning the interpretation or enforceability of this Agreement, shall be filed in the United States District Court for the Eastern District of Louisiana accompanied by a legal request made on behalf of any complainant party (whether one of the Released Parties or the Claimant or the Claimant’s Affiliates) for such dispute to be made part of the multidistrict litigation pending before that Court, titled, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (MDL 2179) or in any United States District Court with venue if, but only if, MDL 2179 has been terminated by the time any dispute concerning this Agreement is filed. No actions to enforce this Agreement shall be filed in state courts. Claimants and Released Parties agree not to contest the existence of federal jurisdiction in MDL 2179 or a United States District Court with venue if, but only if, MDL 2179 has been terminated by the time any dispute concerning this Agreement is filed. 10. This Agreement constitutes the final, complete, and exclusive agreement and understanding between BP and Claimant for the Released Claims and supersedes any and all other agreements, written or oral, between BP and Claimant with respect to such subject matter of this Agreement. 11. This Agreement shall remain effective regardless of any appeals or court decisions relating in any way to the liability of the Released Parties. 12. Attachment “B” to this Agreement is a Resolution authorizing Don R. Amunds, Chairman to execute this Agreement on behalf of Claimant and Claimant’s Affiliates. 14. Attachment “C” to this Agreement is a legal opinion from John R. Dowd, Esquire, the Legal Officer for the Okaloosa County Board of County Commissioners, concluding that the Resolution is valid and that the signatory signing on behalf of Claimant has the legal authority under the law of Okaloosa County Board of County Commissioners and the State of Florida to settle litigation and claims on behalf of Okaloosa County Board of County Commissioners. 3