Execution Copy
Exhibit 10.28
REMEDIATION AGREEMENT
0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx
and
Hillview Xxxxxx Regional Site
---------------------------
This Remediation Agreement (the "Agreement") is entered into by and
between XXXXX International Incorporated ("XXXXX"), a Delaware corporation and
Xxxxxxx-Xxxxxxx Company, a California corporation, on behalf of itself and its
successors and assignees (collectively referred to as "Xxxxxxx-Xxxxxxx") (XXXXX
and Xxxxxxx-Xxxxxxx collectively referred to as the "Parties") for professional
environmental services, as more specifically set forth in this Agreement. This
Agreement is effective and binding on the Parties upon its execution by both
Parties and issuance by AIG Environmental of signed coverage binders for both
the Cleanup Cost Cap Insurance Policy and the Pollution Legal Liability
Insurance Policy, as provided in Paragraphs 5.F. and 5.G., respectively, of this
Agreement, and the date upon which the last of all of these actions is completed
shall be the Effective Date of the Agreement.
RECITALS
WHEREAS, Xxxxxxx-Xxxxxxx is the sub-lessee of property owned by Xxxxxx
Xxxxxxxx Junior University ("Stanford") located at 0000 Xxxxxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxxxxx ("the Hillview Ave. Property") under two (2) separate lease
arrangements more specifically described in Exhibit A, attached hereto and made
a part hereof for all purposes, which property is subject to two separate
environmental cleanup orders issued by government agencies, as described more
specifically below; and
WHEREAS, the Parties acknowledge that Xxxxxxx-Xxxxxxx intends to sell
its leasehold interests in the Hillview Ave. Property and further acknowledge
that Xxxxxxx-Xxxxxxx intends to sell the company in its entirety and that any
and all rights and obligations under this Agreement shall inure to the benefit
of and shall bind Xxxxxxx-Xxxxxxx'x successors and assignees; and
WHEREAS, pursuant to an Imminent Or Substantial Endangerment Order and
Remedial Action Order of the State of California Health and Welfare Agency,
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Department of Health Services, Toxic Substances Control Program, HSA-89/90-012,
issued on May 2, 1990 to Xxxxxxx-Xxxxxxx and Stanford (collectively referred to
from time to time as the "Responsible Parties"), as amended by Amendment to
Order HSA 89/90-012, transmitted by letter dated February 21, 1996 from the
State of California Department of Toxic Substances Control ("DTSC") to
Xxxxxxx-Xxxxxxx (the "Amendment") (collectively, the "Hillview Avenue Order"), a
copy of which Hillview Avenue Order is appended hereto as Exhibit B,
Xxxxxxx-Xxxxxxx and Stanford are ordered to undertake numerous obligations, to
finance and perform numerous tasks, and to submit to certain procedures with
respect to Environmental Conditions (as defined below) at the Hillview Ave.
Property (in the context of the Hillview Avenue Order, referred to hereafter as
the "Hillview Avenue Site"), and are decreed to remain liable for such
obligations and subject to such procedures notwithstanding its conveyance of any
interest in the Hillview Ave. Property, or in any part thereof, to another
party; and
WHEREAS, the procedures, activities, and obligations required by the
Hillview Avenue Order included, among numerous others and without limitation,
implementation of certain prescribed procedures and activities regarding "Public
Participation" (Section 15.4, at p. 1 of the Amendment); preparation of a
Remedial Action Plan ("RAP"), (Section 15.5, at pp. 21-23); preparation of a
Remedial Design and Implementation Plan, (Section 15.5.2, at p. 22);
implementation of an Operation and Maintenance Manual, (Section 15.5.4, at p. 2
of the Amendment to Order); implementation of certain Reporting Requirements
(Section 15.8, at pp. 5-7 of the Amendment); securing of certain DTSC
authorizations and approvals, (e.g., among others, Section 15.5.5, at p. 2 of
the Amendment; Section 15.5.6, at p. 4 of the Amendment; and Section 15.12, at
pp. 8-9 of the Amendment); certain "Compliance With Applicable Laws" (Section
15.13 at p. 9 of the Amendment); reimbursement of certain of the DTSC's "costs
incurred in responding to the contamination at the [Hillview Ave.] Site,"
including DTSC's oversight costs, and "Future Costs" (Section 15.22, at p. 11 of
the Amendment, and Section 15.23 at p. 30); and implementation of a Final
Remedial Action Plan ("Hillview Ave. Final RAP"), including certification by
DTSC that certain criteria specified in the Final RAP for discontinuation of
remedial action (Section 15.5.3, at p. 23) have been met (collectively, the
"Hillview Ave. Order Obligations"); and
WHEREAS, Xxxxxxx-Xxxxxxx and Stanford entered into (1) an Environmental
Access Agreement (the "Access Agreement") effective November 1, 1994 pursuant to
which Stanford, as fee owner of the Hillview Ave. Property, granted access to
Xxxxxxx-Xxxxxxx, its agents, contractors, subcontractors, and other
representatives, in order to allow Xxxxxxx-Xxxxxxx to conduct the investigation
and/or remedial work and activities required by the Hillview Ave. Final RAP and
Remedial Design and Implementation Plan under the Hillview Ave. Order, which
Environmental Access Agreement remains in force and effect, and is assignable
with the prior written consent of Stanford; and (2) a Confidential Environmental
Settlement, Release and Covenant Not to Xxx, dated
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September 17, 1997, under which Xxxxxxx-Xxxxxxx agreed to assume responsibility
for, and to release and discharge Stanford, its trustees, officers and directors
from any and all claims for, response costs (as defined) relating to the
Hillview Avenue Order incurred by Xxxxxxx-Xxxxxxx; and
WHEREAS, pursuant to a Remedial Action Order of the State of California
Health and Welfare Agency, Department of Health Services, Toxic Substances
Control Division [predecessor to the current Department of Toxic Substances
Control] HSA-88/89-016, issued on December 9, 1990 to sixteen (16) different
Respondents (the "Regional Order Respondents"), including Xxxxxxx-Xxxxxxx and
Stanford, as amended on July 7, 1990 (collectively, the "Regional Order"), which
Regional Order was captioned "In the Matter of: Hillview-Xxxxxx Area, Barron
Park Neighborhood & Matadero Creek, Palo Alto, California" (collectively, the
"Regional Site"), a copy of which Regional Order is appended hereto as Exhibit
C, Xxxxxxx-Xxxxxxx and the other Respondents are ordered to undertake numerous
obligations, to finance and perform numerous tasks, and to submit to certain
procedures with respect to environmental conditions at the Regional Site, and
are decreed to remain liable for such obligations and subject to such procedures
notwithstanding conveyance of any interest in their properties within the
Regional Site, or in any part thereof, to another party (collectively, the
"Regional Order Obligations"); and
WHEREAS, the procedures, activities, and obligations required of the
Regional respondents by the Hillview Avenue Order included, among numerous
others and without limitation, implementation of certain prescribed procedures
and activities regarding preparation of a Remedial Investigation and Feasibility
Study (Regional Order, Section V., Paragraphs 2-8, at pp. 42-44), including,
among other elements, a Community Relations Plan, (Regional Order, Section V.,
Paragraphs 2-8, at pp. 42-44), a Final Remedial Action Plan (Section V.,
Paragraphs 9-10, at pp. 44-45) (the "Regional Final RAP"), and Monthly Summary
Reports (Regional Order, Section V., Paragraph 14, at pp. 46); and
WHEREAS, in response to the Regional Order the sixteen Regional Order
Respondents thereto prepared, and the DTSC adopted, the Regional Final RAP on
March 31, 1998; and
WHEREAS, in response to the Regional Order the sixteen Regional Order
Respondents thereto have made certain agreements among themselves (collectively
the "Regional Agreements", a list of which are attached hereto as Exhibit D)
providing for the implementation of the Regional Order Obligations, including
without limitation implementation of investigatory and remedial work for the
Regional Site, access agreements (including an access agreement to the Hillview
Ave. Property allowing activities on the Hillview Ave. Property to be carried
out in response to the Regional Order), creation of a Management Committee to
provide for cost-effective management
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of the investigatory and remedial work, and the allocation and settlement of the
costs thereof, including, among other agreements, a "Memorandum of Agreement for
Final Cost Sharing and Implementation of the Remedial Action Plan," effective as
of October 1, 1993, for the performance of Remedial Action Plan work, and a
"Memorandum of Final Allocation," effective as of April 15, 1994, pursuant to
which Xxxxxxx-Xxxxxxx has been assigned a specific percentage allocation share
of the overall costs of remediation of the Regional Site going forward and
through completion of the Regional Final RAP; and
WHEREAS, the Hillview Ave. Site and Regional Site from time to time
hereafter will be referred to collectively as "the Sites" or "the Two Sites";
the Hillview Ave. Order and Regional Order will be referred to collectively as
"the Orders"; and the Hillview Ave. Final RAP and the Regional Final RAP will be
referred to collectively as "the Final RAPs"; and
WHEREAS, all of the Hillview Ave. Order Obligations of the Responsible
Parties, and all of the Regional Order Obligations of Xxxxxxx-Xxxxxxx,
collectively shall be termed herein the "Work"; and
WHEREAS, Xxxxxxx-Xxxxxxx desires, for the purposes of enhancing the
marketability of its leasehold interests in the Hillview Ave. Property and the
ability to attract financing to those leasehold interests, (i) to assure
satisfactory completion of all of the Work required of the Responsible Parties
under the Hillview Avenue Order and not yet completed by the Responsible
Parties, and all other remaining obligations of Responsible Parties under the
Hillview Avenue Order (hereinafter "Other Hillview Avenue Order Obligations"),
necessary to achieve formal approval of the DTSC or successor agency to
discontinue the remedial action; (ii) to provide for orderly compliance with the
Sampling, Data and Document Availability provision of the Hillview Avenue Order,
as set forth therein (Section 15.17, at p. 10); (iii) to undertake any and all
other response or remedial activities related to Environmental Conditions at the
Hillview Ave. Site necessary to satisfy the requirements of any governmental
agency, entity, or instrumentality having jurisdiction over the Site other than
the DTSC ("Other Regulatory Agency"); and (iv) to assure satisfactory completion
of all of the Work related to the Regional Order, and all of Xxxxxxx-Xxxxxxx'x
remaining obligations under the Regional Order and related documents
(hereinafter "Other Regional Order Obligations") and the Regional Agreements
necessary (A) to help the Management Committee achieve formal approval of the
DTSC or successor agency to discontinue the remedial action, and (B) to fulfill
any and all cost obligations under the Regional Order and Regional Agreements to
Xxxxxxx-Xxxxxxx; and
WHEREAS, Xxxxxxx-Xxxxxxx desires to retain a qualified, experienced,
and competent professional environmental engineering firm, insured by one or
more qualified insurance companies with respect to certain risks described in
this Agreement, to perform
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the Services (as defined in Paragraph 1.A. below) required by the DTSC and any
applicable Other Regulatory Agency pursuant to the Hillview Avenue Order and the
Regional Order, and by this Agreement; and
WHEREAS, Xxxxxxx-Xxxxxxx has made available to XXXXX, and XXXXX
acknowledges it has had access to, either through Xxxxxxx-Xxxxxxx or through its
own activities, and is familiar with the following: (i) with respect to the
Hillview Avenue Site and the Hillview Avenue Order: the Hillview Avenue Order
itself, the Remedial Design and Implementation Plan, the Operation and
Maintenance Manual, the Hillview Ave. Final RAP, the most recent monitoring
report and other documentation relating to the Hillview Ave. Site requested by
the XXXXX and in Xxxxxxx-Xxxxxxx'x possession; and (ii) with respect to the
Regional Site and the Regional Order: the Regional Order itself, the Regional
Agreements, and the Regional Final RAP, the most recent Monthly Summary Report,
and the most recent monitoring report and other documentation relating to the
Regional Site requested by XXXXX, and XXXXX has had an adequate opportunity to
visit the Hillview Ave. Site and the Regional Site, and to conduct such other
activities and inquiries as XXXXX regarding the two Sites as XXXXX has deemed
prudent to adequately assess the Environmental Conditions at the Two Sites; and
WHEREAS, XXXXX is qualified and competent to perform Services required
by this Agreement and is experienced in providing similar services at similar
sites involving similar contamination; and
WHEREAS, XXXXX, insured by AIG Environmental, Incorporated ("AIG
Environmental"), has allied itself with AIG Environmental (the "XXXXX/AIG
Environmental team") to develop and offer to the Responsible Parties an
insurance-backed remediation program intended to provide (i) the technical and
management resources required to perform the Services hereunder, and (ii) the
financial backing, in the form of insurance policies for the benefit of the
Responsible Parties, necessary to insure both payment of the expected costs of
the Services and coverage of related contingencies that could result in cost
overruns in performance of the Services; and
WHEREAS, the insurance policies the XXXXX/AIG Environmental team has
proposed to provide include, in addition to certain standard insurance policies
prescribed herein, (i) an Errors and Omissions Liability Policy as described
herein; (ii) a Cleanup Cost Cap Insurance Policy for the Hillview Avenue Site
and the Regional Site (the "CCC Policy"), which shall be effective on or prior
to the Effective Date; which, with respect to the Hillview Avenue Site, would
pay, on behalf of XXXXX as the Named Insured and Xxxxxxx-Xxxxxxx and Stanford as
Additional Insureds, for the expected on-going remedial activities and
monitoring, as well as related contingencies that might result in cost overruns,
at or related to the Hillview Avenue Site; and which, with respect to the
Regional Site, would pay, on behalf of XXXXX as the Named Insured and
Xxxxxxx-
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Xxxxxxx as Additional Insured, for the expected on-going remedial activities and
monitoring, as well as related contingencies that might result in cost overruns,
at or related to the Regional Site; (iii) a Pollution Legal Liability Insurance
Policy (the "PLL Policy") providing other coverages related to the Environmental
Conditions or other Pollution Conditions (as defined in the PLL Policy), which
shall be effective on or prior to the Effective Date; and which shall name
Xxxxxxx-Xxxxxxx as First Named Insured, XXXXX as Additional Named Insured, and
Stanford and any assignees and sublessees of Xxxxxxx-Xxxxxxx, and their lenders
and equity partners, as Additional Insureds, as described herein;
WHEREAS, XXXXX agrees to perform all of the obligations and
responsibilities of the Responsible Parties, who are "Respondents" under the
Hillview Avenue Order, and all of the obligations and responsibilities of
Xxxxxxx-Xxxxxxx, who is one of the sixteen named Respondents under the Regional
Site Order;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the Parties hereby agree as follows:
1. Services
X. XXXXX Services. XXXXX shall perform or cause to be performed,
with diligence and in a good and workmanlike manner and in
accordance with all applicable federal, state, and local laws,
rules, regulations, permits, ordinances, orders, decrees,
codes, governmental authority directives and other such
requirements, and the Access Agreement (collectively,
"Applicable Requirements"), the Services, which are defined as
(i) all the Work, (ii) all Other Order Obligations at both
Sites, (iii) any and all other tasks required by any Other
Regulatory Agency relating to, or arising out of Environmental
Conditions (as defined below) at both Sites, and (iv) any and
all other tasks agreed to hereunder by the Parties, necessary
to achieve Project Completion (collectively, the "Services").
"Environmental Conditions" is defined as those environmental
conditions (including, without limitation, the contamination
of soil, groundwater or surface water) at each of the Sites,
response to which is required by the corresponding Order.
"Project Completion" is defined, with respect to the Two
Sites, as (i) completion of all Work and fulfillment of all
Other Order Obligations set forth in the Orders, in the
Hillview Ave. Remedial Design and Implementation Plan, and the
Final RAPs, to the satisfaction of the DTSC
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(or "successor agency," defined for the purposes of this
Agreement as any government agency that succeeds to DTSC's
authority to enforce the Order) such that XXXXX satisfies all
of Xxxxxxx-Xxxxxxx'x obligations under the Orders to achieve
formal approval of DTSC or successor agency to discontinue the
remedial action; (ii) completion of any and all other
response, remedial, or other activities related to
Environmental Conditions necessary (a) to satisfy any
requirements of DTSC in addition to those set forth in the
Order, and any requirements of any Other Regulatory Agency in
accordance with applicable laws, and (b) to secure, as
appropriate, documentation from DTSC or any Other Regulatory
Agency of case closure, certificate of completion, written
concurrence for no further action, or other equivalent
documentation of satisfaction of any such requirements; (iii)
remediation of any contamination other than Environmental
Conditions discovered in areas to be remediated as part of the
Services; and (iv) completion of any and all other tasks
agreed to hereunder by the Parties as necessary to finish
activities related to Environmental Conditions.
The Services to be provided shall include with respect to each
of the Sites, without limitation, all labor, materials,
subcontractor charges, laboratory charges, drilling fees,
disposal charges, and permitting fees incurred by XXXXX in
achieving Project Completion, as well as any and all costs
associated with XXXXX'x (or any representative or agent of
XXXXX'x) negotiations with DTSC and any applicable Other
Regulatory Agencies with respect to the Services and Project
Completion.
The Services include, with respect to the Hillview Avenue
Site, any further subsurface investigation activities as XXXXX
deems necessary to further define the Environmental Conditions
at that Site, and abandonment or removal of existing
monitoring xxxxx, remediation xxxxx and any xxxxx that are
installed by XXXXX, in accordance with Applicable
Requirements, to the extent required by any Regulatory Agency
at that Site or required by Stanford under the Access
Agreement, and, with respect to the Regional Site, (A) receipt
of all invoices issued by the Management Committee for
Xxxxxxx-Xxxxxxx'x allocated share of the costs of Work carried
out pursuant to the Regional Order; (B) review and evaluation
of all such invoices to confirm that (1) the Work invoiced was
reasonably required under the Regional Order and was
competently performed, and (2) that the invoice is consistent
in all respects with the terms of the Agreement for Final Cost
Sharing and Implementation of the Remedial Action Plan, and
the Memorandum of Final Allocation, as modified or amended;
(C) timely notification of Xxxxxxx-Xxxxxxx and, as
appropriate, the Management Committee, regarding any reason
such invoice should not be paid; (D)
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timely payment of each invoice consistent with applicable
agreements among the Respondents, provided, however, that
XXXXX'x payment obligation hereunder shall in no event exceed
the 7.131% Adjusted Final Allocation Percentage of the costs
of the Regional Site IRM and RAP Work for which
Xxxxxxx-Xxxxxxx is responsible as of the date of this
Agreement under Exhibit C, entitled "Adjusted Final Allocation
Percentages," of the document entitled "Memorandum of Final
Allocation," the effective date of which is April 15, 1994;
(E) submittal of XXXXX'x claims to AIG Environmental based on
payment of such invoices; and (F) performance, on behalf of
Xxxxxxx-Xxxxxxx and with prior notice to Xxxxxxx-Xxxxxxx, of
any other responsibilities of Xxxxxxx-Xxxxxxx reasonably
arising under the Regional Order, the Agreement for Final Cost
Sharing, and/or the Memorandum of Final Allocation.
B. Changes to Hillview Ave. Order or Hillview Ave. Remedial
Design and Implementation Plan, Operation and Maintenance
Manual, or Final RAP. The Parties acknowledge that deviations
from the Hillview Ave. Order, or to the Hillview Ave. Remedial
Design and Implementation Plan, Operation and Maintenance
Manual, or Final RAP may become necessary as the remediation
proceeds, and that, upon approval of the DTSC in accordance
with the Hillview Ave. Order, upon approval of any applicable
Other Regulatory Agency, and upon approval of Xxxxxxx-Xxxxxxx
and, to the extent the approved cleanup standards are
different from the Final RAP, the approval of Stanford (which
approval shall not be unreasonably withheld or delayed), XXXXX
shall be permitted to make such deviations in order to
cost-effectively and expeditiously achieve Project Completion
with respect to the Hillview Ave. Site. Xxxxxxx-Xxxxxxx'x
approval may only be withheld in the event XXXXX'x proposed
deviation: (i) will materially interfere with operations on
the Site as reasonably determined by Xxxxxxx-Xxxxxxx; (ii)
will not be reasonably likely to achieve Project Completion;
(iii) will be likely to cause the cost of Project Completion
to exceed the amount of the Remediation Cost Program as set
forth hereinafter; or (iv) will violate any provision of this
Agreement or Applicable Requirements. The Parties acknowledge
that XXXXX may determine that additional investigation and
evaluation work is necessary before XXXXX can determine the
specific technical approach that is appropriate in order to
achieve Project Completion with respect to the Hillview Ave.
Site. In the event such additional investigation and
evaluation is undertaken, XXXXX shall strictly comply with the
terms and conditions of the Hillview Ave. Order, Hillview Ave.
Remedial Design and Implementation Plan, and Hillview Ave.
Final RAP, and all Applicable Requirements; and in the
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event such additional investigation or evaluation will have an
adverse impact on the use or operation of the Site (as
reasonably determined by Xxxxxxx-Xxxxxxx), no such work shall
be performed without the approval of Xxxxxxx-Xxxxxxx and, to
the extent the approved cleanup standards are different from
the Final RAP, the approval of Stanford (which approval shall
not be unreasonably withheld or delayed). XXXXX shall
negotiate the technical approach with the DTSC and shall
develop revisions to the Hillview Ave. Order, the Hillview
Ave. Remedial Design and Implementation Plan, or the Hillview
Ave. Final RAP if required. Any such revisions to the Hillview
Ave. Order, Hillview Ave. Remedial Design and Implementation
Plan, or Hillview Ave. Final RAP shall require the approval in
writing of Xxxxxxx-Xxxxxxx (which approval shall not be
unreasonably withheld or delayed. Xxxxxxx-Xxxxxxx'x approval
may only be withheld in the event such revisions: (i) will
materially interfere with operations on the Site as reasonably
determined by Xxxxxxx-Xxxxxxx; (ii) will not be reasonably
likely to achieve Project Completion; (iii) will be likely to
cause the cost of Project Completion to exceed the Remediation
Cost Program as set forth hereinafter; or (iv) will violate
any provision of this Agreement or Applicable Requirements.
Xxxxxxx-Xxxxxxx shall deliver a written response to XXXXX'x
written request for such revisions within thirty (30) days
following receipt of such request. Failure of Xxxxxxx-Xxxxxxx
to deny approval within such thirty (30) day period shall be
deemed an approval. XXXXX shall consult with Xxxxxxx-Xxxxxxx
on any proposed revisions to the technical approach, including
the use of any institutional controls, prior to any meeting
with the Regulatory Agency to discuss such revisions.
XXXXX shall negotiate any changes to the technical and
regulatory approach for the Hillview Ave. Site with the DTSC
and any other applicable Other Regulatory Agencies. The
revised regulatory approach might include active remediation,
and/or risk assessment and/or establishment of institutional
controls.
C. Institutional Controls/Deed Restrictions Related to the
Hillview Ave. Site. XXXXX shall use reasonable efforts to
avoid or minimize the need for deed restrictions, or any other
restrictions inconsistent with planned future use, as part of
institutional controls with respect to the Hillview Ave. Site.
XXXXX shall negotiate with the DTSC or Other Regulatory Agency
to include in any management plan the provision for the future
removal of any deed or use restrictions. No deed restrictions
or any other restrictions inconsistent with planned future use
shall be permitted on any off-Hillview Ave. Site properties as
part of institutional controls, unless specifically
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required by DTSC or any Other Regulatory Agency; provided,
however, that to the extent such deed restrictions are
required by DTSC or any Other Regulatory Agency, any such deed
or use restrictions shall not prevent Project Completion.
D. Electrical and Compressed Air Costs. XXXXX will be responsible
for obtaining and shall pay for electrical power and
compressed air required to operate the vacuum-enhanced
groundwater extraction and treatment system at the Hillview
Ave. Site. Xxxxxxx-Xxxxxxx will use its best efforts to obtain
for the benefit of XXXXX access to an on-Hillview Ave. Site
electrical power and compressed air source from any
assignee(s) and/or sublessee(s) of Xxxxxxx-Xxxxxxx'x leasehold
interests in the Hillview Ave. Site.
E. Water Costs and Discharge, Hillview Ave. Site. XXXXX shall be
responsible for obtaining and paying for any and all required
permits for pumping water and/or for extraction of water by
the vacuum-enhanced groundwater extraction and treatment
system on the Hillview Ave. Site and for discharging
contaminated water related to operation of the vacuum-enhanced
groundwater extraction and treatment system, including but not
limited to groundwater discharge permits issued by the City of
Palo Alto's Public Works Department. XXXXX shall be
responsible and shall pay for any and all costs associated
with the testing or processing of contaminated water prior to
discharge into the City of Palo Alto's sewer collection system
or any other disposal site.
F. Demobilization, Hillview Ave. Site. XXXXX will, in accordance
with Applicable Requirements, demobilize and remove the
vacuum-enhanced groundwater extraction and treatment system
and all appurtenant above-ground, and (subject to Paragraph
1.I.) below-ground piping systems and xxxxx upon closure of
the Hillview Ave. Site.
G. Waste Manifesting. The Parties anticipate that the only waste
generated from performance of the Services at the Hillview
Ave. Site is carbon used in the Granular Activated Carbon
Absorption groundwater treatment system. XXXXX will be listed
as owner and generator of such carbon waste generated as part
of the Services, and will sign all manifests required for the
transportation and disposition (via recycling) of same. The
fees for transportation and recycling of such carbon waste
shall be borne by XXXXX, and shall be included as part of
payment of the Contract Price.
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The Parties also recognize that Xxxxxxx-Xxxxxxx intends to
assign and/or sublease its leasehold interests in the Hillview
Ave. Site, and any assignee(s) and/or sublessee(s) may elect
to conduct development activities on the Hillview Ave. Site,
including without limitation demolition, grading, re-grading,
construction, development or redevelopment, and any such
development activities may cause contaminated soils to be
exposed or generated ("Development Waste"). Xxxxxxx-Xxxxxxx
and XXXXX agree that, absent the express written agreement and
consent by XXXXX, XXXXX shall not be listed as the owner and
generator of Development Waste in the event such Development
Waste must be disposed of in a location other than the
Hillview Ave. Site.
Finally, the Parties acknowledge the possibility that, during
the course of performing its Services, XXXXX could encounter
waste, the discovery of which is neither known nor
foreseeable. Within five (5) days after such unknown and
unforeseeable waste is discovered, the Parties will discuss,
in good faith, and agree upon the appropriate disposition of
such waste. The Parties agree that in the event DTSC or Other
Regulatory Agency requires off-Site disposition of such waste
and the Parties mutually agree to transport such waste to a
qualified, licensed facility for destruction (e.g.,
incineration), then XXXXX shall be listed as owner and
generator of such waste on all manifests required for the
transportation and disposition of same, and shall sign all
such manifests, and XXXXX shall submit the cost of same as a
covered "Cleanup Cost" for reimbursement under the CCC Policy
and/or as a covered "Loss" under the PLL Policy. To the extent
the costs of transportation and destruction of such waste are
not covered and reimbursed under the CCC or PLL Policies, then
XXXXX and Xxxxxxx-Xxxxxxx shall bear equal responsibility for
payment of such costs. The Parties further agree that in the
event DTSC or Other Regulatory Agency requires off-Site
disposition of such waste, and destruction of such waste (i)
is not covered by the CCC or PLL Policies and is economically
infeasible to the Parties, or (ii) is not permitted under any
applicable law or regulation, then XXXXX shall not be listed
as the owner and generator of such waste and shall not be
required to sign manifests required for transportation and
disposition of same.
H. Scheduling, Reporting, and Coordination. During the
performance of Services, XXXXX shall submit to Xxxxxxx-Xxxxxxx
periodic progress reports on the actual progress and updated
schedules for the Two Sites, and, within fifteen (15) days of
XXXXX'x receipt, copies of all correspondence, reports
(including, without limitation, the semi-annual reports on the
Regional Site activities commissioned and issued by the
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Management Committee), and any other materials delivered to or
received from the DTSC (pursuant to the Orders or otherwise)
or any Other Regulatory Agency. XXXXX recognizes that
Xxxxxxx-Xxxxxxx and other contractors and subcontractors may
be working concurrently at the Hillview Ave. Site. XXXXX
agrees to cooperate with Xxxxxxx-Xxxxxxx and other contractors
so that the performance of the Services as a whole will
progress with a minimum of interruption to XXXXX,
Xxxxxxx-Xxxxxxx, other contractors, tenants, licensees and
invitees. XXXXX shall be entitled to rely on Xxxxxxx-Xxxxxxx'x
reasonable cooperation and the reasonable cooperation of
Xxxxxxx-Xxxxxxx'x other contractors, while XXXXX attempts to
complete this Agreement in a timely, orderly and efficient
manner.
In the event that XXXXX believes at any time that
Xxxxxxx-Xxxxxxx is failing to cooperate with XXXXX, XXXXX
shall notify Xxxxxxx-Xxxxxxx in writing and describe with
adequate specificity the actions that XXXXX would like
Xxxxxxx-Xxxxxxx to take. Thereafter, Xxxxxxx-Xxxxxxx and XXXXX
shall meet to mutually agree on the measures that
Xxxxxxx-Xxxxxxx is willing to take.
With respect to the Hillview Ave. Site, XXXXX shall submit
drafts of all reports, work plans, remedial action plans, and
any revisions requested for the Hillview Ave. Order to
Xxxxxxx-Xxxxxxx prior to submission to the DTSC or applicable
Other Regulatory Agency. Xxxxxxx-Xxxxxxx shall have fifteen
(15) days in which to review the document and provide comments
to XXXXX. XXXXX shall incorporate such comments when feasible
and consistent with the technical and regulatory approach of
XXXXX and shall explain to Xxxxxxx-Xxxxxxx the reasons for any
decision by XXXXX not to incorporate any of Xxxxxxx-Xxxxxxx'x
comments. Upon request of Xxxxxxx-Xxxxxxx, XXXXX shall meet
Xxxxxxx-Xxxxxxx, as applicable, at the Hillview Ave. Site or
at another mutually agreeable location to discuss such
comments. Subject to Paragraph 1.B. hereof, XXXXX reserves the
right to make the final decision on the contents of all
documents submitted to the Regulatory Agency to the extent
such contents are required with respect to the Services or
Project Completion. Xxxxxxx-Xxxxxxx shall have the right to
dispute such contents before the DTSC or any applicable Other
Regulatory Agency. Notwithstanding the foregoing, or anything
to the contrary contained herein, Xxxxxxx-Xxxxxxx shall make
the final decision on the contents of all documents submitted
to the DTSC or any Other Regulatory Agency to the extent such
comments relate to contamination outside the scope of the
Environmental Conditions or matters not required to be
reported for the purpose of performing the Services or
achieving Project Completion.
Execution Copy 13
I. Hillview Ave. Site Maintenance, Restoration and Closure. XXXXX
shall keep its work area for Services at the Hillview Ave.
Site in a neat, clean and safe condition, in compliance with
all Applicable Requirements, and shall remove from the
Hillview Ave. Site, and properly dispose of, all wastes
generated by XXXXX'x operations. Within seven (7) days
following completion of the Services for the Hillview Ave.
Site, XXXXX shall remove from the Hillview Ave. Site all of
XXXXX'x equipment and material, and all equipment and material
comprising the vacuum-enhanced groundwater extraction and
treatment system owned by Xxxxxxx-Xxxxxxx (except as otherwise
determined by Xxxxxxx-Xxxxxxx, in its sole discretion). XXXXX
shall repair any and all damage caused to the Hillview Ave.
Property as a result of the removal of Equipment, other
closure activities, and other activities of XXXXX in
connection with the Services hereunder and shall leave the
Hillview Ave. Site in a condition as close as is reasonably
practicable to its condition prior to the installation of such
Equipment and conduct of Service-related activities,
reasonable wear and tear excepted.
J. Authorization to Proceed. XXXXX shall be authorized to
commence performance of the Services upon execution of this
Agreement.
K. Independent Contractor. XXXXX shall be fully independent in
performing the Services and shall not act as Xxxxxxx-Xxxxxxx'x
agent or employee, but rather as an independent contractor
retained by Xxxxxxx-Xxxxxxx to perform the Services. XXXXX
shall not take any action or omit to take any action that is
inconsistent with its status as an independent contractor
under this Agreement. XXXXX shall be responsible for all
governmental fees and regulatory oversight or other costs,
charges, or fees accruing during the term of the Agreement and
during its performance of the Services, for payment of any
penalties that may be imposed upon it in performance of the
Services, and for payment of all compensation, benefits,
contributions, and taxes, if any, due its employees, agents,
contractors, and subcontractors.
L. Subcontracts. XXXXX shall be entitled to subcontract
performance of any portion of the Services under this
Agreement, provided that such shall not in any manner relieve
XXXXX of responsibility for undertaking, conducting and
completing the Services in a manner consistent in all respects
with this Agreement or of responsibility for the actions of
its subcontractors, and provided that XXXXX'x insurance,
including the policies itemized in Paragraphs 5.A (1) through
(3) hereof, is endorsed to respond as if XXXXX had not so
subcontracted. Notwithstanding the foregoing, in no event
shall XXXXX assign this Agreement without the express written
consent of
Execution Copy 14
Xxxxxxx-Xxxxxxx, which consent may be granted or denied at the
sole discretion of Xxxxxxx-Xxxxxxx.
M. Authorized Representative. XXXXX and Xxxxxxx-Xxxxxxx shall
each direct their communications with the others through one
designated representative ("Authorized Representative"). The
initial Authorized Representatives of the Parties shall be:
For XXXXX:
Name: Xxxxx Xxxxxxxxxx
Address: XXXXX International Incorporated
000 - 00xx Xxxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxxxxxx@xxxxx.xxx
For Xxxxxxx-Xxxxxxx:
Name: Xxxxx X. Xxxxxxxx
Address: Xxxxxxx-Xxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx.xxxxxxxx@xx.xxx
Each Party may change its Authorized Representative by giving
written notice to the other Party.
Execution Copy 15
N. Notices to Authorized Representatives. XXXXX shall notify
Xxxxxxx-Xxxxxxx'x Authorized Representative within three (3)
business days after becoming aware of the occurrence of an
event described below:
(1) XXXXX or any agent or subcontractor receives notice
of violation (or threat that such notice may be
issued) of the Orders or of any Applicable Law which
relates to the performance of Services under this
Agreement or to the Hillview Ave. Site;
(2) Proceedings are commenced or threatened which could
lead to revocation or abeyance of permits, licenses,
or other governmental authorizations which relate to
the Services with respect to either of the Sites;
(3) A permit, license, or other governmental
authorization relating to the Services with respect
to either of the Sites is revoked;
(4) Litigation is commenced or threatened concerning or
impacting the Services with respect to either of the
Sites or the Hillview Ave. Property or the Hillview
Ave. off-Site property; or
(5) Any other condition occurs or is threatened to occur
which may have a material and adverse effect on the
use and occupancy of the Hillview Ave. Property, the
timely performance of the Services with respect to
either of the Sites under this Agreement, or the
timely performance of any duties XXXXX or the
Responsible Parties may have under any Applicable
Law.
O. Conflicts. XXXXX, its agents, and subcontractors shall not,
during the term of this Agreement, undertake any employment or
engagement, or, except as required by law, perform any act or
allow any omission, which may result in a conflict with any of
their respective obligations pursuant to this Agreement. In
the event XXXXX, its agents, or subcontractors are called upon
under a purported requirement of law to do or omit anything
that may be in violation of the foregoing, XXXXX shall give
Xxxxxxx-Xxxxxxx'x Authorized Representative sufficient advance
written notice thereof to allow Xxxxxxx-Xxxxxxx to contest or
take such action as Xxxxxxx-Xxxxxxx deems necessary.
2. Responsibilities of Xxxxxxx-Xxxxxxx
A. Hillview Ave. Site Access; Other Cooperation. Xxxxxxx-Xxxxxxx
shall provide access to the Hillview Ave. Property to allow
XXXXX to carry out
Execution Copy 16
the Services, and shall otherwise reasonably cooperate with
XXXXX in carrying out the Services, in obtaining access for
XXXXX'x activities in connection with the Services in the
vicinity of the project Hillview Ave. Site, and in supporting
XXXXX in XXXXX'x negotiation of the technical remediation
approach, regulatory approach and scope and level of
remediation with the DTSC or applicable Other Regulatory
Agency. Xxxxxxx-Xxxxxxx shall provide in any assignment of its
interests hereunder, or in any transfer of its leasehold
interests in the Hillview Ave. Property, that any assignee(s)
and/or sublessee(s) of Xxxxxxx-Xxxxxxx shall comply with the
terms and obligations under this Paragraph 2.A, including,
without limitation, providing access to XXXXX as required
hereunder.
B. Hillview Ave. Site Development. The Parties acknowledge that
Xxxxxxx-Xxxxxxx intends to assign and/or sublease its
leasehold interests in the Hillview Ave. Site, and any
assignee(s) and/or sublessee(s) may elect to conduct
development activities on the Hillview Ave. Site, including
without limitation demolition, grading, re-grading,
construction, development or redevelopment. The Parties agree
that XXXXX shall not pay the costs of such development
activities, except to the extent any such development
activities (i) are required or are included as part of the
Services, or (ii) result from the negligence, recklessness, or
willful misconduct of, or from the violation of any Applicable
Law by, XXXXX, its employees, agents, representatives,
contractors, subcontractors, successors, or assigns. The
Parties contemplate that the term "costs associated with such
development activities" includes the development and
implementation of construction worker health and safety plans,
the design and installation of vapor barriers or other
engineering controls under new buildings, and the treatment or
disposal of soil (and associated de-watering) that is
excavated as a result of such demolition, grading,
development, or redevelopment activities.
C. Regional Site Responsibilities. Xxxxxxx-Xxxxxxx acknowledges
that it will retain its responsibilities and obligations under
the Regional Order and the Regional Agreements.
Xxxxxxx-Xxxxxxx will take such actions as are required to have
the Management Committee for the Regional Site recognize XXXXX
as Xxxxxxx-Xxxxxxx'x designated representative for (1)
receiving correspondence, reports, and other communications
from the Management Committee, (2) representing
Xxxxxxx-Xxxxxxx in any meetings or group communications of the
Management Committee or of any subgroup of the Management
Committee that Xxxxxxx-Xxxxxxx would be entitled or obligated
to attend or participate in, and (3) conveying to the
Management Committee payments and communications required of
Xxxxxxx-Xxxxxxx, among other activities that may be required
of XXXXX
Execution Copy 17
relative to the Management Committee in performing the
Services hereunder.
3. Contract Price and Payment
A. Contract Price. XXXXX shall complete all the Services, achieve
Project Completion with respect to both Sites, and arrange for
purchase of the CCC Policy set forth in Paragraph 5.F., for
the total fixed price of $2,024,900 ("Contract Price").
Xxxxxxx-Xxxxxxx shall pay the Contract Price directly to AIG
Environmental within 14 days of execution of this Agreement.
Xxxxxxx-Xxxxxxx also shall pay directly to AIG Environmental
the premium necessary to purchase the PLL Policy set forth in
Paragraph 5.G. within 14 days of execution of this Agreement.
B. Additional Contract Payments By Xxxxxxx-Xxxxxxx. In addition
to the amounts paid by Xxxxxxx-Xxxxxxx to AIG Environmental
set forth in Paragraph 3.A., Xxxxxxx-Xxxxxxx shall pay
directly to XXXXX, following execution of this Agreement and
within ten (10) days of receipt an invoice from XXXXX for such
amounts, (1) the amount of $140,000, as XXXXX'x risk transfer
and signing fee for entering into this Agreement, and (2) the
amount of $39,715, as the amount the Parties have agreed
Xxxxxxx-Xxxxxxx is to pay XXXXX to fund XXXXX'x ability to
extend the PLL policy described in Section 5.G. of this
Agreement for up to an additional ten-year period.
C. Disbursement and Reporting of Funds. XXXXX will arrange with
AIG Environmental that upon execution of this Agreement,
execution of the CCC Policy, and payment of the Contract Price
by Xxxxxxx-Xxxxxxx, and pursuant to the terms of the CCC
Policy, AIG Environmental will undertake (1) disbursement of
funds to XXXXX necessary to complete the Services, including
achievement of Project Completion with respect to both Sites,
on an invoiced basis as further described below; and (2)
preparation and circulation of reports at regular intervals to
XXXXX and Xxxxxxx-Xxxxxxx regarding XXXXX'x activities and
aggregate funds disbursed to XXXXX for performance of Services
and all other payments charged against the cost coverage cap
at each of the Sites to that date.
D. Payment of XXXXX. Under the terms of the CCC Policy, XXXXX
shall be paid by AIG Environmental on the following basis:
(1) Payments Related to Hillview Ave. Site. Prior to
execution of the Agreement, and from time to time
during the term of the Agreement
Execution Copy 18
as may be agreed by the Parties, but in no event at
less than annual intervals, XXXXX shall prepare and
present to Xxxxxxx-Xxxxxxx for its review and
approval, a Planned Services and Annual Estimated
Payment Schedule (attached hereto as Exhibit E) for
the Hillview Ave. Site, setting forth the planned
activities related to performance of the Services
related to the Site for the next one-year period.
XXXXX shall submit Invoices for its Services
consistent with the procedures set forth in paragraph
3.C.(3) directly below.
(2) Payments Related to the Regional Site. From time to
time during the term of the Agreement as may be
agreed by the Parties, but in no event at less than
annual intervals, XXXXX shall prepare and present to
Xxxxxxx-Xxxxxxx a report on the planned activities of
the Management Committee at the Regional Site and
XXXXX'x own planned activities, if any, in relation
to the Management Committee's activities at that
Site, for the next one-year period. Whenever XXXXX
receives an invoice from the Management Committee for
Xxxxxxx-Xxxxxxx'x assessed share of costs for the
activities at the Regional Site, XXXXX shall be
entitled to submit such invoice, together with an
invoice for any of its own Services related to review
of such invoice, for payment consistent with the
procedures set forth in the Paragraph 3.C.(3)
directly below.
(3) Procedures for Payment of XXXXX
(a) XXXXX shall perform the Services and, in
accordance with the Planned Services
Schedule and Schedule of Payments submitted
and approved for the respective period as
described in Paragraphs 3.C.(1) and (2),
invoice AIG for payment of its Services in
accordance with the Schedule of Costs set
forth on Exhibit F attached hereto, as may
be amended from time to time.
(b) XXXXX shall arrange for, and the terms of
the CCC Policy shall require, preparation by
AIG Environmental and delivery by AIG
Environmental to XXXXX and Xxxxxxx-Xxxxxxx
of quarterly statements showing all payment
activity occurring with respect to the
Services both during the subject quarter and
cumulatively since execution of the
Agreement and the CCC Policy.
(c) If, based upon the AIG Environmental
quarterly statements described in Paragraph
3.C.(3)(b), XXXXX at any time has
Execution Copy 19
received 125 percent (125%) or more of the
approved Schedule of Payments amount for the
approved Planned Service Schedule period,
then Xxxxxxx-Xxxxxxx may, at its sole
discretion, notify XXXXX and AIG
Environmental in writing of
Xxxxxxx-Xxxxxxx'x election to activate the
"Xxxxxxx-Xxxxxxx Invoice Approval Mechanism"
described in Paragraph 3.C.(3)(d), and XXXXX
shall, for the remainder of that Planned
Service Schedule period (unless the Parties
negotiate a mutually acceptable revised
Planned Service Schedule and revised
Schedule of Payments), be obligated to
conform to the Xxxxxxx-Xxxxxxx Invoice
Approval Mechanism set forth in Paragraph
3.C.(3)(d) as a condition of further
payment.
(d) Xxxxxxx-Xxxxxxx Invoice Approval Mechanism.
In the event the conditions of subsection
3.C.(3)(c) are satisfied and Xxxxxxx-Xxxxxxx
elects to activate the "Xxxxxxx-Xxxxxxx
Invoice Approval Mechanism," XXXXX, prior to
submitting any invoice to AIG Environmental
for payment of Services, shall prepare and
submit any invoice related to the Hillview
Ave. Site or to the Regional Site to
Xxxxxxx-Xxxxxxx'x Authorized Representative,
by Federal Express overnight service ("XXXXX
Invoice").
Xxxxxxx-Xxxxxxx shall have fourteen (14)
days from the receipt (deemed to be the day
after XXXXX'x timely deposit of the invoice
into Federal Express overnight service) of
each XXXXX Invoice within which to send to
XXXXX written objections concerning such
XXXXX Invoice. Written objections shall be
sent to XXXXX by Federal Express overnight
service, but additional transmittals of
objections may be via facsimile or same-day
messenger service. If XXXXX has not received
a written objection to the invoice by the
end of business on the fifteenth day (15th)
day following Xxxxxxx-Xxxxxxx'x receipt of
the invoice, the invoice shall be deemed
approved in all respects, and XXXXX may
submit the invoice to AIG Environmental
Execution Copy 20
for payment. Each objection shall set forth
with specificity the nature of the
objection. In the event notice of objection
to a XXXXX Invoice is provided as required
herein, Xxxxxxx-Xxxxxxx and XXXXX shall use
their best efforts to resolve the objection
to the disputed XXXXX Invoice. XXXXX may
submit to AIG Environmental for payment any
undisputed portion of a disputed XXXXX
Invoice. All objections to XXXXX Invoices
that have not been resolved within sixty
(60) days following receipt of the XXXXX
Invoice shall be subject to binding
arbitration as provided herein. Objections
to payment of XXXXX Invoices must be based
on one or more of the following reasons:
1. XXXXX has deviated materially from
the Final RAPs or related
requirements of the Orders, or from
this Agreement, including the
applicable approved Planned Services
Schedule as may be modified from
time to time pursuant to Paragraphs
3.C.(1) and (2) hereof, without
approval of Xxxxxxx-Xxxxxxx;
2. XXXXX has failed to make payments in
accordance with the terms of XXXXX'x
contracts with its subcontractors or
for labor, materials, or equipment
supplied to the Site, resulting in
placement of liens or other
encumbrances on the Property;
3. XXXXX'x negligence or willful
misconduct relating to or arising
out of the Services performed or to
be performed by XXXXX has resulted
in loss or damage to a third party,
which loss or damage XXXXX refuses
or is unable to repair or remedy;
4. XXXXX or its agent, subcontractor,
or materials supplier has caused
material damage to Xxxxxxx-Xxxxxxx
or the Property, which loss or
damage XXXXX refuses or is unable to
repair or remedy; or
5. XXXXX is otherwise failing to comply
with a material provision of the
Agreement.
4. Representations and Warranties by XXXXX
A. Applicability. All representations and warranties of XXXXX
contained herein are made to and for the benefit of
Xxxxxxx-Xxxxxxx.
B. Qualifications. XXXXX represents and warrants that it is
familiar with the geological and environmental conditions at
the Sites. XXXXX represents and warrants that it has had an
adequate opportunity to visit the Hillview Ave. Site and the
Regional Site, to study the documents concerning the Two
Sites, and to conduct such other activities and inquiries
regarding the two
Execution Copy 21
Execution Copy 21 Sites as XXXXX has deemed prudent to
adequately assess the Environmental Conditions at the Two
Sites. XXXXX represents and warrants that it has the necessary
skills, training, and expertise required to perform the
Services consistent with this Agreement. XXXXX represents and
warrants that it shall perform the Services in compliance with
this Agreement and all Applicable Requirements, and with the
standards of care and diligence practiced by nationally
recognized professional firms performing services of a similar
nature during the same time and in the same or similar
locality.
C. Remediation Cost Program. XXXXX agrees to pay for all costs,
including without limitation labor, materials, laboratory
charges, drilling fees, and permitting fees incurred by XXXXX
in performing all Services and achieving Project Completion up
to a limit of $10,000,000 in the aggregate for the Two Sites.
Notwithstanding any other provision, covenant, warranty,
guarantee, term or condition of this Agreement, XXXXX'x
responsibility for and/or liability to pay for the costs,
including time and expenses, of activities necessary to
provide all Services and achieve Project Completion under this
Agreement shall not, in any event, extend beyond or exceed
$10,000,000 in the aggregate; except that this $10,000,000
limit shall not apply to any costs (including any costs that
exceed $10,000,000) that result from the negligence,
recklessness, or willful misconduct of, or from the violation
of any Applicable Law by, XXXXX, its employees, agents,
representatives, contractors, subcontractors, successors, or
assigns and XXXXX shall remain liable for any such costs
resulting from the negligence, recklessness, or willful
misconduct of, or from the violation of any Applicable Law,
except to the extent such costs are paid under the CCC Policy
or PLL Policy. Except as otherwise set forth herein, after
such $10,000,000 threshold is reached, Xxxxxxx-Xxxxxxx agrees
that XXXXX shall be released and discharged of any obligation,
duty, promise, covenant, or condition of this Agreement, and
the Agreement shall be deemed terminated by consent of the
Parties.
For the purposes of this Agreement, project costs,
including time and expenses, shall be accounted for on the
basis of the Schedule of Costs attached hereto as Exhibit X.
XXXXX shall be permitted to increase the amounts set forth in
the Schedule of Costs on an annual basis by an amount not to
exceed the Consumer Price Index. The term "Consumer Price
Index" shall mean the Consumer Price Index, for All Urban
Consumers, Subgroup "All Items", for the San
Francisco-Oakland-San Xxxx Metropolitan Area published by the
U.S. Department of Labor. If such index is discontinued,
"Consumer Price Index" shall thereafter refer to the most
nearly comparable
Execution Copy 22
official price index of the United States Government as
reasonably determined by XXXXX.
D. Financial Resources. XXXXX represents and warrants that it has
the financial resources, as augmented by AIG Environmental and
the CCC Policy and PLL Policy, to prosecute this Agreement
with diligence to Project Completion with respect to both
Sites, even if the nature or extent of Environmental
Conditions, and thus, the cost estimate thereof, exceeds
XXXXX'x estimate thereof, and XXXXX pledges to use such
resources as necessary to diligently achieve Project
Completion at both Sites.
5. Insurance
X. XXXXX'x Required Insurance. XXXXX shall maintain at its own
expense, and shall, upon request, provide to DTSC,
Xxxxxxx-Xxxxxxx, and Stanford, certificates of insurance
demonstrating that it maintains the following insurance
coverage, underwritten by companies and on coverage forms
acceptable to Xxxxxxx-Xxxxxxx, in the following amounts:
(1) Worker's compensation and employer's liability
insurance in an amount not less than the greater of
$1,000,000 or that amount prescribed by law;
(2) Comprehensive automobile liability insurance (owned,
non-owned, and hired) with limits of one million
dollars ($1,000,000) per occurrence and one million
dollars ($1,000,000) in the aggregate and umbrella
and excess coverage, with a limit of nine million
dollars ($9,000,000) each occurrence and in the
aggregate (as long as such limit is commercially,
reasonably available, but in no event less than
$5,000,000 each occurrence and $9,000,000 in the
aggregate);
(3) Commercial General Liability insurance with limits of
one million dollars ($1,000,000) per occurrence and
two million dollars ($2,000,000) in the aggregate
which policy shall have broad-form contractual
liability coverage and such endorsements as may be
reasonably acceptable to Xxxxxxx-Xxxxxxx and umbrella
and excess coverage also having broad form
contractual liability coverage and such endorsements
as may be reasonably acceptable to Xxxxxxx-Xxxxxxx
with a total limit of nine million dollars
($9,000,000) each occurrence and in the aggregate (as
long as such limit is commercially, reasonably
available, but in no event less than $5,000,000 each
occurrence and $9,000,000 in the aggregate); and
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(4) Professional errors and omissions and contractors
pollution legal liability insurance with limits of
two million dollars ($2,000,000) per incident and in
the aggregate.
XXXXX'x Commercial General Liability, comprehensive automobile
liability insurance and professional errors and omissions and
pollution legal liability coverage may be provided under one
policy.
B. Term of Coverage for XXXXX'x Insurance. With respect to
Paragraph 5.A, insurance of a sufficient magnitude to satisfy
the foregoing shall be maintained without a reduction in or
narrowing of coverage at all times during the course of the
Services and for at least four years following the termination
of the Agreement or the completion of all Services under this
Agreement. The required insurance shall provide coverage for
the negligent acts and omissions of XXXXX, its agents,
employees, contractors, and subcontractors, and shall contain
broad form contractual liability coverage. All policies shall
require that Xxxxxxx-Xxxxxxx be provided with thirty (30) days
advance written notice of cancellation, reduction, change, or
renewal of each such policy. Proof of insurance shall be
provided by XXXXX prior to execution of this Agreement and
will be kept up to date at all times by XXXXX. In the event a
professional errors and omissions and contractor's pollution
legal liability insurance policy is to be terminated, XXXXX
shall prevent any gap in coverage during the course of the
Services and for four (4) years thereafter by extending the
present policy to cover the time period before a new policy is
obtained. The provisions of this Section 5 shall survive the
completion of the Services or termination of this Agreement.
In the event that XXXXX fails to maintain the required
coverage hereunder, Xxxxxxx-Xxxxxxx shall have the right,
after thirty (30) days written notice to XXXXX, to obtain such
coverage as is reasonably necessary to replace the coverage
not maintained by XXXXX and to be reimbursed for the costs of
such insurance directly by XXXXX.
C. Copy of XXXXX'x Policy. XXXXX shall provide a current copy of
its Professional Errors and Omissions and Contractor's
Pollution Legal Liability Insurance policy, as it exists at
the inception of this Agreement, to Xxxxxxx-Xxxxxxx. XXXXX
represents and warrants that, except as described in detail in
Exhibit G, attached and made a part hereof for all purposes,
XXXXX is not the subject of or a party to any claim, demand,
mediation, arbitration, lawsuit, or judgment as would threaten
availability of insurance coverage made a part of this
Agreement. XXXXX shall notify Xxxxxxx-Xxxxxxx in writing of
any change in such representation and warranty within fourteen
(14) days following the discovery of such change.
Execution Copy 24
D. Additional Insureds on XXXXX'x Policy. On all insurance
coverage provided by XXXXX per Paragraph 5.A except worker's
compensation coverage, errors and omissions and contractor's
pollution legal liability insurance coverage, or except where
Xxxxxxx-Xxxxxxx shall decline same in advance and in writing,
Xxxxxxx-Xxxxxxx, any successors of Xxxxxxx-Xxxxxxx and their
lenders and equity partners (and, if requested by
Xxxxxxx-Xxxxxxx, any assignee(s) and/or sublessee(s) of
Xxxxxxx-Xxxxxxx and their lenders and equity partners) and
Stanford shall be named as Additional Insureds (under an
endorsement at least as broad as CG 00-00-00-00 issued by the
Insurance Services Office, Inc.), with waiver of subrogation
rights.
E. Waiver of Rights. Xxxxxxx-Xxxxxxx and XXXXX waive all rights
against one another for all losses and damages to the extent
covered and actually paid by the policies of insurance
provided for herein and any other property insurance
applicable to the Services except that with respect to
coverage for events or circumstances arising out of or
relating to the performance of the Services, the CCC Policy
and the PLL policy shall be primary, followed by XXXXX'x other
insurance coverages. Each subcontract between XXXXX and a
subcontractor will contain similar waiver provisions by the
subcontractor in favor of Xxxxxxx-Xxxxxxx and all other
parties named as Additional Insureds.
F. Cleanup Cost Cap Insurance. On or prior to the Effective Date,
XXXXX shall arrange for issuance by AIG Environmental, and AIG
Environmental shall have issued, the CCC Policy, which shall
name and pay on behalf of XXXXX as Named Insured, and which
shall be in the form attached hereto as Exhibit H, or in such
other form as agreed to by the parties. The CCC Policy shall
name Xxxxxxx-Xxxxxxx and Stanford, as Additional Insureds, and
shall expressly provide for assignment of the Additional
Insureds' rights under the CCC Policy to their successors and
assigns (whether or not this Agreement is in effect). Coverage
under the CCC Policy shall commence and be effective as of the
Effective Date and shall terminate on the earlier of Project
Completion or thirty (30) years from the Effective Date, with
a limit of ten million dollars ($10,000,000). Xxxxxxx-Xxxxxxx
shall pre-pay for the CCC Policy in a lump sum as set forth in
Paragraph 3.A. of this Agreement. Proof of Insurance under
this Paragraph 6.F. shall be provided by AIG Environmental on
or before the Effective Date and thereafter upon request by
XXXXX, Xxxxxxx-Xxxxxxx, and any Additional Insured, its lender
or equity partner, or DTSC. In the event that XXXXX causes the
termination of the CCC Policy hereunder, Xxxxxxx-Xxxxxxx shall
have the right, after thirty (30) days written notice to
XXXXX, to obtain
Execution Copy 25
such coverage as is reasonably necessary to replace the
coverage and to be reimbursed for the costs of such insurance
directly from XXXXX.
G. Pollution Legal Liability Insurance. Prior to or on the
Effective Date, AIG Environmental shall issue the PLL Policy,
which shall name Xxxxxxx-Xxxxxxx as First Named Insured, and
which shall be in the form attached hereto as Exhibit I, or in
such other form as agreed to by the parties. The PLL Policy
shall name XXXXX as Additional Named Insured, and Stanford
(and, if requested by Xxxxxxx-Xxxxxxx, any successors of
Xxxxxxx-Xxxxxxx and their lenders and equity partners) as
Additional Insured. The PLL Policy shall expressly provide for
assignment of the First Named Insured's rights under the PLL
Policy to its successors and assigns as otherwise described in
this Paragraph 5.G. (whether or not this Agreement is in
effect). The PLL Policy shall have a policy term of ten (10)
years following the Effective Date, with a limit of ten
million dollars ($10,000,000). In the event Xxxxxxx-Xxxxxxx or
its successor or assign, elects to increase the limits of the
PLL Policy, then XXXXX shall be named as an Additional Named
Insured, up to the increased policy limits, but not to exceed
Twenty Million Dollars ($20,000,000). Xxxxxxx-Xxxxxxx shall
pre-pay for the PLL Policy in a lump sum. Proof of Insurance
under this Paragraph 5.G. shall be provided by AIG
Environmental on or before the Effective Date and thereafter
upon request by any Named Insured, Additional Insured, or the
DTSC. In the event that XXXXX causes the termination of the
PLL Policy hereunder, Xxxxxxx-Xxxxxxx shall have the right,
after thirty (30) days written notice to XXXXX, to obtain such
coverage as is reasonably necessary to replace the coverage
and to be reimbursed for the costs of such insurance directly
from XXXXX.
6. Financial
A. Maintenance of Financial Standards. XXXXX shall be solely
responsible for and Xxxxxxx-Xxxxxxx shall have no right in
respect to the management of XXXXX'x own internal affairs,
including, without limitation, those relating to its
compliance with laws, regulations and rules governing its
formation, preservation and functioning as a corporation and
its management, accounting policies, insurance programs,
shareholder and labor relations, for purposes of XXXXX'x
performance of activities related to Services or Project
Completion under this Agreement, and otherwise.
B. Financial Statements. At any time during the term of this
Agreement, within three (3) business days following receipt of
Xxxxxxx-Xxxxxxx'x
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written request XXXXX shall provide Xxxxxxx-Xxxxxxx with such
audited financial statements as are necessary to assure
Xxxxxxx-Xxxxxxx of the financial ability of XXXXX to perform
the Services under this Agreement. Such audited financial
statements may reflect XXXXX'x relationship with AIG
Environmental. Xxxxxxx-Xxxxxxx shall maintain the
confidentiality of, and not disclose to anyone (other than
officers, counsel, lenders, or those who have a need to know
as provided in this Agreement) the contents of same,
consistent with the provisions of Section 13 of this
Agreement.
C. Financial Ability. At all times during the term of this
Agreement, XXXXX shall maintain the financial resources
necessary to meet its obligations hereunder and satisfy all of
its other obligations and liabilities.
7. Assignment of Xxxxxxx-Xxxxxxx'x Rights to a Third Party
The Parties expressly agree that Xxxxxxx-Xxxxxxx may convey or assign
its rights under this Agreement (provided the duties and obligations
hereunder of Xxxxxxx-Xxxxxxx as transferor or assignor are delegated to
and assumed in full by the transferee or assignee) to any third party,
including, without limitation, under any of the following
circumstances: (i) to any third party in conjunction with a subsequent
sale, assignment, or sublease of all or a portion of the Hillview Ave.
Site; (ii) to a subsidiary, affiliate, division or corporation
controlling, controlled by or under common control with
Xxxxxxx-Xxxxxxx; (iii) to a successor corporation related to
Xxxxxxx-Xxxxxxx by merger, consolidation, nonbankruptcy reorganization,
or government action; or (iv) to a purchaser of Xxxxxxx-Xxxxxxx'x
assets located on the Site ("Permitted Assignee"). In the event of an
assignment of this Agreement by Xxxxxxx-Xxxxxxx to a Permitted
Assignee, XXXXX agrees that the transferee or assignee, or a
foreclosing lender or other party, shall succeed to the rights of
Xxxxxxx-Xxxxxxx in connection with the project, subject to additional
conditions that (1) XXXXX'x rights and obligations shall remain
substantially intact and unaffected by any such transfer or assignment
or any disposition of the Sites or portion thereof, and (2)
transferee's or assignee's rights shall not be any greater than
Xxxxxxx-Xxxxxxx'x hereunder, or enlarged with respect to enforcement or
carrying-out of any corresponding obligations of XXXXX vis-a-vis the
rights and privileges of Xxxxxxx-Xxxxxxx. Nothing in this Paragraph 7
is intended to or in fact affects or diminishes XXXXX'x rights under
Paragraph 8.C. ("Termination for Cause by XXXXX"), Subsection (3).
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8. Termination
A. Termination for Cause. Xxxxxxx-Xxxxxxx or XXXXX may only
terminate this Agreement for "cause," as defined in Paragraphs
8.B. and 8.C. The definition of "cause" as set forth in
Paragraphs 8.B. and 8.C. shall be strictly construed. In no
event shall Xxxxxxx-Xxxxxxx or XXXXX have the right to
terminate this Agreement for convenience or for any other
reason not strictly constituting "cause" herein (such as
economic/business or legal/regulatory considerations affecting
use or disposition of the property). Termination for cause
shall be initiated by written notice ("Termination Notice")
from the terminating party delivered to the allegedly
defaulting party at least sixty (60) days prior to the
termination date, or three (3) days in case of emergency
("Termination Date"). The allegedly defaulting party shall
have until the Termination Date to cure the alleged default.
If the default giving rise to "cause" is cured prior to the
Termination Date, the Termination Notice shall automatically
be deemed of no further force or effect. The CCC Policy shall
expressly contemplate and allow that upon termination of this
Agreement by Xxxxxxx-Xxxxxxx pursuant to this Paragraph 8.A.,
a settlement of claims of XXXXX and Xxxxxxx-Xxxxxxx, shall be
made as follows:
(1) In the event of such termination by Xxxxxxx-Xxxxxxx,
Xxxxxxx-Xxxxxxx shall, at its discretion: (i) take
possession of any or all materials and equipment,
tools, and construction equipment owned by XXXXX at
the Site; (ii) finish the Services by whatever method
Xxxxxxx-Xxxxxxx may xxxx expedient; and (iii) shall
be assigned, at Xxxxxxx-Xxxxxxx'x option, any and all
contracts or subcontracts relating to the performance
of the Services.
(2) In the event of termination by Xxxxxxx-Xxxxxxx, XXXXX
shall, upon request by Xxxxxxx-Xxxxxxx, promptly
advise Xxxxxxx-Xxxxxxx of all outstanding unperformed
or uncompleted subcontracts, rental agreements, and
purchase orders which XXXXX has with others
pertaining to performance of the Services, and shall
furnish Xxxxxxx-Xxxxxxx with complete copies thereof.
(3) XXXXX shall, no later than thirty (30) days following
the Termination Date, deliver to Xxxxxxx-Xxxxxxx a
final invoice for Services rendered to the
Termination Date, which invoice shall be subject to
the objection and payment procedures set forth in
Paragraph 3.C. hereof ("Final Invoice").
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(4) Upon termination for cause by Xxxxxxx-Xxxxxxx, XXXXX
shall, upon Xxxxxxx-Xxxxxxx'x written request,
perform such Services as Xxxxxxx-Xxxxxxx reasonably
deems necessary to preserve and protect the Services
already in progress and to dispose of any property as
reasonably requested by Xxxxxxx-Xxxxxxx or its
Authorized Representative ("Disengagement Services").
The cost and expense of such Disengagement Services
shall be borne equally by XXXXX and Xxxxxxx-Xxxxxxx.
(5) Xxxxxxx-Xxxxxxx shall have the right to waive an
event of default or an event giving rise to
termination for cause provided such waiver is in
writing and signed by Xxxxxxx-Xxxxxxx.
B. Termination for Cause by Xxxxxxx-Xxxxxxx. With respect to
termination for "cause" by Xxxxxxx-Xxxxxxx, "cause" shall be
defined as any of the following circumstances that cause
Xxxxxxx-Xxxxxxx material harm:
(1) If the Services have not been or are not being
performed in accordance with the provisions of this
Agreement so as to materially and adversely affect
Xxxxxxx-Xxxxxxx with respect to either the Hillview
Ave. Site or the Regional Site;
(2) If XXXXX has materially violated or is materially
violating either of the Orders, the Final RAPs, or
any requirements thereunder, or any other Applicable
Requirements pertaining to the Services;
(3) If XXXXX refuses or otherwise fails in a material
manner or degree to supply enough properly skilled
labor or proper equipment or materials to accomplish
the Services;
(4) If any voluntary or involuntary proceedings in
bankruptcy or insolvency have been commenced by or
against XXXXX (in which event Xxxxxxx-Xxxxxxx may
immediately terminate this Agreement, notwithstanding
Paragraph 8.A above);
(5) If XXXXX has committed or is committing any act of
bankruptcy or has become insolvent or unable to meet
its debts as they mature (in which event
Xxxxxxx-Xxxxxxx may immediately terminate this
Agreement, notwithstanding Paragraph 8.A above);
(6) If XXXXX fails to maintain any insurance required
under Paragraph 5.A., and does not, within thirty
(30) calendar days after written notice of such
failure provide proof to Xxxxxxx-Xxxxxxx that such
insurance has been obtained and that any such policy
provides equal
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coverage during the period of any "gap" between the
expiration of the old policy and the effective date
of the new policy.
If XXXXX is in default under this Agreement, Xxxxxxx-Xxxxxxx
shall have, in addition to the termination rights set forth
herein, all rights and remedies available to it at law or in
equity, including, without limitation, the right to seek
specific performance to enforce this Agreement. Nothing
contained in the foregoing sentence shall be deemed to imply
that Xxxxxxx-Xxxxxxx shall have the right to terminate this
Agreement for any reason other than "cause" or prior to the
Termination Date (except as provided in this Paragraph 8.B.,
Subparagraphs (4) through (6) above).
C. Termination for Cause by XXXXX. With respect to termination
for "cause" by XXXXX, "cause" shall be defined as any of the
following circumstances that cause XXXXX material harm:
(1) If Xxxxxxx-Xxxxxxx wrongfully prevents payment to
XXXXX of any amounts owed to XXXXX by Xxxxxxx-Xxxxxxx
hereunder (excluding the failure of AIG Environmental
to pay any amount due through no fault or act of
Xxxxxxx-Xxxxxxx) and such amounts have not been paid
within ten (10) days following receipt by
Xxxxxxx-Xxxxxxx of written notice from XXXXX that
such amounts are due; and/or
(2) If Xxxxxxx-Xxxxxxx wrongfully and materially prevents
XXXXX from performing its material duties and
obligations under this Agreement.
(3) If Xxxxxxx-Xxxxxxx'x successor and/or assignee does
not provide to XXXXX, upon XXXXX'x written request,
reasonable financial assurances, in the form of (i)
audited financial statements that demonstrate a net
worth of at least ten million dollars ($10,000,000),
(ii) a Letter of Credit (evidencing five hundred
thousand dollars ($500,000) in credit), (iii) a
surety bond (evidencing five hundred thousand dollars
($500,000) in surety), (iv) one or more certificates
of insurance evidencing the same types and levels of
insurance required of XXXXX under Paragraph 5.A (1),
(2), and (3), for the same duration and under the
same terms as set forth in 5.B., and providing XXXXX
rights to terminate "for cause" in the event the
successor and/or assignee fails to maintain the
insurance under the same terms and conditions as set
forth in 8.B.(6), or (v) some other evidence of
financial assurance, the form of which shall be
acceptable to XXXXX, which demonstrates financial
ability comparable to the levels of ability necessary
to satisfy item (i), (ii), or
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(iii), in this subsection (3), provided, however,
that (a) XXXXX must provide to such successor and/or
assignee written notice, consistent with the
provisions of Section 17 of this Agreement, that
XXXXX requires such financial assurances or that the
financial assurances already offered are
insufficient, and (b) such successor and/or assignee
may have forty-five (45) days from the date such
notice is received to provide such financial
assurance, during which period XXXXX may not
terminate this Agreement.
If Xxxxxxx-Xxxxxxx is in default under this Agreement, XXXXX
shall, in addition to the termination rights set forth herein,
have all rights and remedies available to it at law or in
equity, including, without limitation, the right to seek
specific performance to enforce this Agreement. Nothing
contained in the foregoing sentence shall be deemed to imply
that XXXXX shall have the right to terminate this Agreement
for any reason other than "cause" or prior to the Termination
Date.
D. Additional Xxxxxxx-Xxxxxxx Remedies
(1) In the event a Termination Notice is delivered to
XXXXX by Xxxxxxx-Xxxxxxx, Xxxxxxx-Xxxxxxx may order
XXXXX to immediately stop performance of such
Services, or any portion of such services, until the
cause for such failure to perform has been eliminated
by XXXXX at XXXXX'x cost and expense. However, the
right of Xxxxxxx-Xxxxxxx to order XXXXX to stop the
provision of Services at either Site shall not give
rise to a duty on the part of Xxxxxxx-Xxxxxxx to
exercise this right for the benefit of XXXXX or any
other person or entity.
(2) In the event of a termination of this Agreement by
any party hereto, the following shall apply with
respect to either or both of the Two Sites and the
Services related to either or both of the Two Sites:
(a) Xxxxxxx-Xxxxxxx may find a new third party
contractor to either complete performance of
the Services at either or both of the Two
Sites, and assume the obligations of XXXXX
hereunder with respect to the Site or Sites,
or to enter into a new contract with
Xxxxxxx-Xxxxxxx for Services related to the
Site or Sites on the same terms and
conditions as set forth herein ("New
Contractor").
(c) In the event: (i) Xxxxxxx-Xxxxxxx is unable
to locate a New Contractor willing to assume
XXXXX'x obligations hereunder
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for either Site or both Sites or to enter
into a new contract on the same terms and
conditions as set forth herein; (ii)
performance of Services at either Site or
both of the Sites is required before a New
Contractor is selected as a result of a
pending or threatened violation of either
Order or both of the Orders or other
Applicable Law; or (iii) in the event
performance of Services at either Site or
both of the Sites is required to minimize
adverse consequences of the Environmental
Conditions at either Site or both of the
Sites, Xxxxxxx-Xxxxxxx shall have the right
(until such time as a New Contractor is
selected) to perform such Services.
9. Change Orders
A. Parties' Intent. It is the intent of the Parties that this
Agreement eliminates as far as reasonably possible the
potential for additional charges or change orders to the
general scope of Services.
B. Hillview Ave. Site
(1) With respect to the Hillview Ave. Site, circumstances
could arise, caused by the actions or requests of
Xxxxxxx-Xxxxxxx, its successors, or its assigns or
sublessees, in which a change order may be warranted,
which change order would be paid for by
Xxxxxxx-Xxxxxxx, its successor, assignee, or its
sublessee without any claim against, or any
reimbursement from XXXXX or the CCC Policy. Such
circumstances include, but are not limited to the
following: (i) the situation where Xxxxxxx-Xxxxxxx,
its successor, assignee, or sublessee chooses to have
XXXXX remove and relocate a remediation system in
order to accommodate a revision to a redevelopment
plan that was not disclosed to XXXXX as of the
Effective Date of this Agreement or at the time XXXXX
installed the remediation system, or (ii) the
situation where Xxxxxxx-Xxxxxxx'x, its successor's,
assignee's, or sublessee's other contractors damage
XXXXX'x equipment or remediation installation.
Another circumstance that might warrant a change
order would be any request by Xxxxxxx-Xxxxxxx, its
successor, assignee, or sublessee to address
environmental conditions that are not Environmental
Conditions hereunder, the remediation of which would
require additional costs and expenses beyond what
would be required for the remediation of the
Environmental Conditions pursuant to Hillview
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Ave. Order and the Final RAP for the Hillview Ave.
Site. The costs for remediation of such environmental
conditions shall be paid by Xxxxxxx-Xxxxxxx within
thirty (30) days of receipt of invoice(s) from XXXXX
for services performed pursuant to any Change
Order(s) executed by the Parties under this Section
9.
(2) Upon mutual agreement of Xxxxxxx-Xxxxxxx and XXXXX,
upon approval of the DTSC as required under the terms
of the Hillview Ave. Order and Final RAP, upon
approval of any Other Regulatory Agency to the extent
applicable, and subject to execution of a Change
Order as herein described, XXXXX may perform services
in addition to the Services described under Paragraph
1.A. for the Hillview Ave. Site. In no event shall
execution of a Change Order limit, impair, or affect
XXXXX'x obligations to perform the Services, except
to the extent expressly set forth in such Change
Order.
C. Regional Site
(1) With respect to the Regional Site, Xxxxxxx-Xxxxxxx
and XXXXX do not anticipate any Change Orders to be
required except to the extent that the Management
Committee for the Regional Site undertakes
modifications in the approved plan of remediation or
in operations of the Management Committee such that
XXXXX'x obligations hereunder at the Regional Site
are significantly changed.
(2) With respect to the Regional Site, circumstances
could arise, caused by the actions or requests of
Xxxxxxx-Xxxxxxx, in which a Change Order may be
warranted, which Change Order would be paid for by
Xxxxxxx-Xxxxxxx, its successor, or assignee, without
any claim against, or any reimbursement from XXXXX or
the CCC Policy. Such circumstances include, but are
not limited to the situation where (i)
Xxxxxxx-Xxxxxxx, its successor, or assignee chooses
to have XXXXX remove and relocate all or part of the
Regional Site remediation system in order to
accommodate a revision to a redevelopment plan that
was not disclosed to XXXXX as of the Effective Date
of this Agreement or at the time the remediation
system was installed, or (ii) Xxxxxxx-Xxxxxxx'x, its
successor's, or assignee's other contractors damage
the equipment or remediation installation being used
in the Regional Site remediation, such that the
equipment or installation must be replaced.
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(3) Upon mutual agreement of Xxxxxxx-Xxxxxxx and XXXXX,
upon approval of the DTSC, if such approval is
required under the terms of the Regional Order and
Final RAP, upon approval of the Management Committee
or of any Other Regulatory Agency to the extent
applicable, and subject to execution of a Change
Order as herein described, XXXXX may perform services
in addition to the Services described under Paragraph
1.A. for the Regional Site. Xxxxxxx-Xxxxxxx shall pay
XXXXX for the costs for such additional services
performed pursuant to any Change Order(s) executed by
the Parties under this Section 9 within thirty (30)
days of receipt of invoice(s) from XXXXX. In no event
shall execution of a Change Order limit, impair, or
affect XXXXX'x obligations to perform the Services,
except to the extent expressly set forth in such
Change Order.
D. Preparation of Change Orders. Change Orders for either Site
shall be prepared as follows:
(1) Change Order Requirements. A "Change Order" shall be
a written agreement between Xxxxxxx-Xxxxxxx and
XXXXX, which shall be expressly designated "Change
Order." A Change Order may be proposed by
Xxxxxxx-Xxxxxxx or XXXXX, or either of their
Authorized Representatives. Upon execution by both
Xxxxxxx-Xxxxxxx and XXXXX, the Change Order shall be
put in effect and paid for by Xxxxxxx-Xxxxxxx.
Xxxxxxx-Xxxxxxx'x Authorized Representative is hereby
authorized to prepare, review, and execute Change
Orders on behalf of Xxxxxxx-Xxxxxxx.
At a minimum, each Change Order shall state the
following:
(1) the nature of the change to be addressed;
(2) a description of the means by which the
change shall be addressed;
(3) a fixed price or time-and-materials estimate
as agreed upon by the Parties; and
(4) the amount of any change in the time frame
for completion required to address the
change.
(2) Change Order Requested by Xxxxxxx-Xxxxxxx. If a
request for a Change Order is initiated by
Xxxxxxx-Xxxxxxx or its Authorized Representative,
XXXXX shall promptly provide, as appropriate, the
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information required as described in Paragraph
9.D.(1), and any other relevant information
requested.
(3) Change Order Requested by XXXXX. Change Orders
proposed by XXXXX shall be in writing and shall be
promptly forwarded to Xxxxxxx-Xxxxxxx'x Authorized
Representative for review and comment. XXXXX'x
response to such review and comment by the
Xxxxxxx-Xxxxxxx'x Authorized Representatives shall be
provided promptly by XXXXX to Xxxxxxx-Xxxxxxx'x
Authorized Representative.
(4) Performance. XXXXX shall perform the Services as
modified by any executed Change Orders. In the event
Xxxxxxx-Xxxxxxx and XXXXX fail to agree to a proposed
Change Order, unless otherwise directed by
Xxxxxxx-Xxxxxxx, XXXXX may not suspend performance of
the Services and Xxxxxxx-Xxxxxxx and XXXXX shall
submit the disputed Change Order for resolution by
binding arbitration as provided for herein.
10. Indemnities
A. Indemnity by XXXXX. XXXXX agrees to indemnify, hold harmless,
and defend (with attorneys reasonably acceptable to the
applicable indemnified party) Xxxxxxx-Xxxxxxx and
Xxxxxxx-Xxxxxxx'x directors, officers, employees, agents,
representatives, shareholders, partners, investors,
affiliates, parents, subsidiaries, successors, and assigns
from and against, whether direct or indirect, consequential or
otherwise, any and all damages, interest, liabilities,
proceedings, causes of action, claims, suits, demands,
actions, judgments, costs, and expenses (hereinafter
collectively referred to as "Claims"), which any or all of
them may incur to the extent resulting from or arising out of:
(1) Any negligence, recklessness or willful misconduct by
XXXXX or its employees, agents, representatives,
contractors, subcontractors, successors, or assigns
arising with respect to this Agreement or the
performance of the Services, or
(2) Any violation of either Order or both the Orders or
other Applicable Requirements, by XXXXX or its
employees, agents, representatives, contractors,
subcontractors, successors, or assigns, provided the
party seeking indemnity is not then in default
hereunder.
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B. Indemnity by Xxxxxxx-Xxxxxxx. Xxxxxxx-Xxxxxxx agrees to
indemnify, hold harmless, and defend (with attorneys
reasonably acceptable to the applicable indemnified party)
XXXXX, and its respective directors, officers, employees,
agents, representatives, shareholders, partners, affiliates,
parents, subsidiaries, successors, and assigns from and
against Claims which any or all of them may incur to the
extent such Claims do not result from or arise out of:
(1) Any negligence, recklessness or willful misconduct by
XXXXX or its employees, agents, representatives,
contractors, subcontractors, successors, or assigns
arising with respect to this Agreement or the
performance of the Services; or
(2) Any violation of either Order or both the Orders or
other Applicable Requirements, by XXXXX or its
employees, agents, representatives, contractors,
subcontractors, successors, or assigns, provided the
party seeking indemnity is not then in default
hereunder;
C. Claim by Agent or Subcontractor. In the event of claims
against any person or entity indemnified above brought by any
direct or indirect agent or employee of XXXXX, or of its
subcontractor, or of anyone for whose acts or omissions XXXXX
or its subcontractor may be liable, the indemnification
obligation under this Section 10 shall not be limited by a
limitation of any amount or type of damages, compensation, or
benefits payable to said employee or agent contained in any
worker's compensation acts, disability benefit acts, or other
employee benefit acts or in any subcontract.
D. Survival of Indemnities. The indemnities under this Section 10
shall survive the termination of this Agreement.
11. Force Majeure
A. Force Majeure Event. Neither XXXXX nor Xxxxxxx-Xxxxxxx shall
be deemed in default of this Agreement to the extent that any
delay or other failure to perform their obligations as
required pursuant to the Agreement results without fault or
negligence from an event of "Force Majeure." For purposes of
this Agreement, the term "Force Majeure" shall be defined as
follows: any event, arising from causes beyond the reasonable
control of the Parties (other than a Party's lack of or
inability to obtain funds to fulfill its obligations or
undertakings under this Agreement), that delays or prevents
the performance of any obligation arising under this
Agreement, such as, without limitation, acts of God, labor
disputes, strikes, vandalism, fires,
Execution Copy 36
floods, or weather conditions which would prevent or impair
the performance of the Services. Upon the occurrence of any
event claimed by a Party to be Force Majeure, the claiming
Party shall notify the other Party promptly of the occurrence
of such event, followed by written notification thereof given
within three (3) calendar days after the date the claiming
Party discovered or should have discovered the event of Force
Majeure has occurred. The written notification shall contain
any information which may be required to be disclosed to an
applicable regulatory agency under any administrative or court
order affecting the Services. Failure to notify the other
parties either orally or in writing in accordance with this
Section shall constitute a waiver of such claim of Force
Majeure, provided, however, no modification of the Services
shall be made unless and until written notice is provided. If
the Parties cannot agree that the reason for delay or failure
of performance is a Force Majeure, the Parties shall submit
such issue to arbitration in accordance with Section 17
hereof. In no event shall any event of Force Majeure relieve
either XXXXX or Xxxxxxx-Xxxxxxx of any obligation hereunder
other than to extend the time of performance required of such
Party.
12. Compliance with Training Requirements
A. Compliance and Training. XXXXX covenants that it and its
employees, agents, contractors, subcontractors, and those
under its management or supervision, including, without
limitation, those with whom XXXXX has contracted and their
employees, agents, contractors, and subcontractors:
(1) Shall comply with all applicable environmental,
health and safety and work plans, orders and decrees,
and with all applicable laws; and
(2) Shall be properly trained, registered, and certified
as appropriate or required.
B. Safety. XXXXX shall take reasonable safety and other
precautions in the performance of the Services. XXXXX shall
comply with all Applicable Requirements, including, without
limitation, the Occupational Safety and Health Act of 1970 (84
U.S. Statutes 1590), as amended, and regulations thereunder,
to the extent applicable, and XXXXX warrants the compliance
thereof of materials, equipment, and facilities, whether
temporary or permanent, furnished by XXXXX in connection with
the performance of the Services.
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13. Confidentiality, Records Retention and Reporting
A. Treatment of Confidential Information. XXXXX shall ensure that
it and its employees, agents, contractors, and subcontractors
shall treat as confidential any information, whether verbal or
written or of any description whatsoever, developed or
obtained in performing the Services or in any way relating to
the Site or this Agreement ("Confidential Information").
Confidential Information shall not include any periodic
reports or data required to be submitted pursuant to the
Orders or otherwise required to be submitted to the DTSC or
Other Regulatory Agency to achieve Project Completion. The
confidentiality obligation required by this Section 13 shall
not apply to information which (I) is in the public domain,
(II) is disclosed to XXXXX by a third party without
restriction, (III) is independently developed by XXXXX apart
from this Agreement, (IV) was in XXXXX'x possession prior to
entering into this Agreement, or (V) is required to be
publicly disclosed under operation of law. Such Confidential
Information shall not be disclosed to anyone other than
Xxxxxxx-Xxxxxxx or its Authorized Representatives, except for
disclosure to governmental authorities and subcontractors when
required to perform the Services and only: (i) in the case of
a subcontractor, agent or representative of XXXXX, upon
receipt by XXXXX of a written acknowledgment from such
subcontractor, agent or representative that it will comply
with the provisions of this Paragraph 13.A. in the same manner
as XXXXX and shall assume the same rights and obligations as
XXXXX as set forth in this Paragraph 13.A., and (ii) in the
case of governmental authorities, after XXXXX has provided
Xxxxxxx-Xxxxxxx with written notice, no later than ten (10)
days prior to the submission of such Confidential Information
to a governmental authority, that such information shall be
submitted. To the extent disclosure of Xxxxxxx-Xxxxxxx'x
Confidential Information is mandated by law, Xxxxxxx-Xxxxxxx
shall have the right to exhaust all challenges to the
disclosure prior to XXXXX'x disclosing the Confidential
Information, but only within the time period prior to when
such law mandates disclosure. To the extent challenges to the
disclosure of Xxxxxxx-Xxxxxxx'x Confidential Information
involve additional expenses to XXXXX for costs of testimony
and assistance of counsel, such costs as are reasonably
incurred shall promptly be reimbursed by Xxxxxxx-Xxxxxxx, as
applicable. In the event XXXXX is ordered to disclose the
Confidential Information by any governmental authority and
Xxxxxxx-Xxxxxxx has either exhausted its challenges to such
disclosure obligation or has otherwise waived such challenges,
XXXXX shall only disclose that portion of the Confidential
Information that is required to be disclosed. It is further
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understood and agreed that money damages would not be
sufficient remedy for any breach of this Paragraph 13.A. and
that, in addition to all other remedies available at law to
Xxxxxxx-Xxxxxxx, Xxxxxxx-Xxxxxxx shall be entitled to
injunctive relief and specific performance as a remedy for a
breach of this Paragraph by XXXXX.
The confidentiality obligations set forth in this Paragraph
shall survive termination or completion of this Agreement.
B. Disclosure of XXXXX'x Confidential Information.
Xxxxxxx-Xxxxxxx shall have the right to disclose documents and
information (including financial information of XXXXX and any
financial information related to CCC Policy, its status, or
any of the insurance policies hereunder) related to the
Services to actual and prospective lenders, buyers, investors,
insurance companies, and tenants. Tenants are not to receive
proprietary or financial information of XXXXX without XXXXX'x
prior written approval, which XXXXX shall not unreasonably
withhold. In the event Xxxxxxx-Xxxxxxx plans to submit any
confidential information of XXXXX to any governmental agency,
XXXXX shall have the same rights with respect to such
confidential information as are granted to Xxxxxxx-Xxxxxxx
paragraph 13.A hereof. This Paragraph 13.B. shall survive
termination or completion of this Agreement.
C. Use of Project Information. XXXXX agrees that any promotional
material disseminated in the course of its business may not
disclose the specific name, location, and scope of Services to
be provided under this Agreement at either Site. XXXXX agrees
further that any statement of qualifications submitted to any
third party in connection with potential projects or business
relationships shall disguise the Services to be provided under
this Agreement in such a manner that its location, as well as
the environmental condition of the Sites, cannot be
ascertained or determined. Xxxxxxx-Xxxxxxx can, in
Xxxxxxx-Xxxxxxx'x sole and absolute discretion, allow XXXXX to
identify the location of the Project and/or the identification
of Xxxxxxx-Xxxxxxx in such materials. Xxxxxxx-Xxxxxxx must
agree to such disclosures in writing before any dissemination
by XXXXX may occur, which agreement shall not be unreasonably
withheld.
14. Staffing
A. Adequate Staffing. XXXXX shall furnish a competent and
adequate staff as necessary for the proper and diligent
administration, performance, coordination, and supervision of
the Services; organize the procurement of
Execution Copy 39
all materials and equipment so that they will be available at
the time they are needed for timely completion and performance
of the Services; and keep an adequate force of skilled staff
on the job to complete the Services in accordance with all
provisions of this Agreement. XXXXX shall supply a statement
of qualifications for those specific persons who shall perform
the Services.
B. Subcontractors. XXXXX shall properly pay all subcontractors
for all amounts due and payable and shall indemnify, defend,
and hold Xxxxxxx-Xxxxxxx harmless from any claims or liens of
subcontractor. Without limitation on the foregoing, in the
event that any such lien is filed against the Hillview Ave.
Property and upon adjudication of the lien or obligation in
favor of the subcontractor, Xxxxxxx-Xxxxxxx is hereby
authorized to submit invoices directly to AIG Environmental to
satisfy such lien and any other costs incurred by
Xxxxxxx-Xxxxxxx with respect to such lien, provided
Xxxxxxx-Xxxxxxx provides XXXXX 30 days' prior written notice
of its intent to do so.
C. Supervision. XXXXX shall supervise and direct the Services,
using that skill and attention ordinarily exercised by members
of the profession practicing under similar conditions at the
same time and in the same or similar locality. Subject to the
provisions hereof, XXXXX shall, with respect to its
subcontractors, agents, employees and representatives, be
responsible for: (1) construction means, methods, techniques,
sequences, and procedures, (2) health or safety precautions
and programs in connection with the Services, and (3)
coordinating the Services under the Agreement, unless directed
otherwise by Xxxxxxx-Xxxxxxx or its Authorized Representative.
15. Xxxxxxx-Xxxxxxx'x Site Activities
X. Xxxxxxx-Xxxxxxx Activities at the Site. Xxxxxxx-Xxxxxxx
reserves the right to perform construction, operations, or
other activities at the Site outside the scope of Services, or
not related to the Services, through Xxxxxxx-Xxxxxxx'x own
forces or through award of separate contracts to other
contractor or contractors. Upon written request from XXXXX,
Xxxxxxx-Xxxxxxx shall provide information reasonably requested
by XXXXX with respect to such activities. Xxxxxxx-Xxxxxxx
shall provide a representative to meet with representatives of
XXXXX to coordinate the Services with construction activities
at the Site.
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B. Cooperation by XXXXX. XXXXX shall afford Xxxxxxx-Xxxxxxx and
any of Xxxxxxx-Xxxxxxx'x separate contractors reasonable
opportunity for performance of such other activities at the
Site and shall reasonably coordinate the Services with such
other activities. Upon written request from Xxxxxxx-Xxxxxxx,
XXXXX shall promptly provide any Xxxxxxx-Xxxxxxx contractor
with instructions and other information reasonably requested
by Xxxxxxx-Xxxxxxx, such as maps showing the location of
monitoring xxxxx, recovery xxxxx, and any other equipment used
for or in connection with the Services and remediation of the
Environmental Conditions (collectively, the "Equipment"), in
order to identify the location of any Equipment to enable such
contractors to avoid impeding or delaying any construction
activities at the Site and avoiding any damage or destruction
of the Equipment. XXXXX shall provide a representative to meet
with representatives of Xxxxxxx-Xxxxxxx or Xxxxxxx-Xxxxxxx'x
contractors from time to time as necessary to coordinate the
Services with construction activities at the Site. XXXXX shall
relocate all Equipment to the extent necessary to accommodate
any redevelopment plans for the Site, provided such plans are
disclosed to XXXXX no less than thirty (30) days prior to any
planned redevelopment in a manner sufficient to identify the
location, layout, and depth of redevelopment construction and
Xxxxxxx-Xxxxxxx shall reimburse XXXXX for its costs associated
with relocation of the Equipment.
16. Claims
A. Notice of Claim. Any claim against a Party pursuant to this
Agreement must be in writing, must set forth the facts upon
which it is based, and except as expressly provided to the
contrary herein, must be received by the non-claiming Party at
least thirty (30) days prior to the filing of any demand for
arbitration involving such claims and such notice; which
notice, the Parties agree, shall be a jurisdictional
prerequisite to bringing any claim.
B. Arbitration of Disputes. Claims, disputes and other matters in
question between the Parties to this Agreement arising out of
or relating to this Agreement or the Services shall be
submitted to and settled by arbitration conducted in the
County of Santa Clara, California, in accordance with the
rules then in effect of the American Arbitration Association
by three (3) arbitrators appointed in accordance with such
rules. The award rendered by the arbitrators shall be final
and binding, and judgment may be entered upon it in any court
having jurisdiction thereof. Notwithstanding the foregoing,
the Parties may apply to any court of competent jurisdiction
for a
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temporary restraining order, preliminary injunction, or other
interim or conservatory relief, as necessary, without breach
of this arbitration agreement and without any abridgment of
the powers of the arbitrators. No arbitration arising out of
or relating to this Agreement or the Services shall include,
by consolidation or joinder or in any other manner, an
additional person not a party hereto, except by written
consent signed by the Parties and any other person sought to
be joined. Consent to arbitration involving an additional
person or persons shall not constitute consent to arbitration
of a dispute not described or with a person not named therein.
This provision shall be specifically enforceable in any court
of competent jurisdiction.
Notice of demand for arbitration shall be filed in writing
with the other Party to this Agreement and with the American
Arbitration Association. The demand shall be made within a
reasonable time after the written notice of claim above. In no
event shall the demand for arbitration be made after the date
when the applicable statute of limitations would bar
institution of a legal or equitable proceeding based on such
claim, dispute, or other matter in question. However, once a
claim is made, the statute of limitations shall be tolled
during the thirty (30) day period from the time the claim is
filed until the demand for arbitration is filed.
If agreed to in writing by Xxxxxxx-Xxxxxxx, and unless this
Agreement has been terminated in accordance with the terms
hereof, XXXXX shall carry on the Services and maintain its
progress during any claim filing and arbitration proceedings,
and XXXXX shall be entitled to continue to receive payments in
accordance with this Agreement; provided, however, that if
Xxxxxxx-Xxxxxxx does not agree to the continued performance of
the Services by XXXXX, such Services shall cease and no
invoices shall be submitted to the AIG Environmental for the
contested payment pending the completion of the arbitration
proceeding.
This Paragraph 16.B. shall survive Project Completion or
termination of this Agreement.
17. Notices
All notices and other communications required to be made under this
Agreement shall be made by hand delivery or by overnight mail and shall
be deemed to have been made as of the time and date of receipt. All
such notices and communications to XXXXX shall be addressed for
delivery to XXXXX'x Authorized Representative identified in Paragraph
1.M.. All such notices and communications to Xxxxxxx-
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Xxxxxxx shall be addressed for delivery to Xxxxxxx-Xxxxxxx'x Authorized
Representative identified in Paragraph 1.M..
18. Miscellaneous
A. Entire Agreement. This Agreement represents the final
embodiment of the Parties' intentions and understandings with
respect to the subject matter hereof. It supersedes any prior
understandings, whether written or oral, or of any description
whatsoever.
B. Modification. No modification of this Agreement shall be
binding upon all Parties except by a written instrument
executed by Xxxxxxx-Xxxxxxx and XXXXX.
C. Conflict. In the event of any conflict among or between the
applicable provisions of the documents comprising this
Agreement, XXXXX shall immediately notify Xxxxxxx-Xxxxxxx'x
Authorized Representative of such conflict or potential
conflict among or between the applicable provisions of the
above Agreement and any other parts of this Agreement.
Xxxxxxx-Xxxxxxx'x Authorized Representative shall make a good
faith effort to resolve the disputed with XXXXX within fifteen
(15) days, and if such dispute is not resolved after fifteen
(15) days, then the Parties shall submit the dispute for
resolution by binding arbitration as provided for herein.
D. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of (1) Xxxxxxx-Xxxxxxx, including,
but not limited to, its successors and their lenders and
equity partners, and any assignees and/or sublessees of
Xxxxxxx-Xxxxxxx, and their lenders and equity partners,
irrespective of whether a particular provision of the
Agreement refers simply to "Xxxxxxx-Xxxxxxx" or refers as well
to such additional entities; and (2) XXXXX, and its successors
and assigns. XXXXX shall be responsible for its
representations, warranties, duties, obligations, and
responsibilities under the Agreement. Notwithstanding anything
to the contrary contained herein, XXXXX may not assign its
rights or obligations under this Agreement without the prior
written consent of Xxxxxxx-Xxxxxxx, which consent may be not
be unreasonably withheld.
E. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
California.
F. Captions and Headings. The captions and headings throughout
this Agreement are for convenience and reference only, and the
words contained
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therein shall in no way be held or deemed to define, limit,
describe, modify, or add to the interpretation, construction,
or meaning of any provision of or scope or intent of this
Agreement.
G. Severability.
(1) General. If any provision of this Agreement, or
application thereof to any person or circumstance,
shall to any extent be determined to be invalid, then
such provision shall be modified, if possible, to
fulfill the intent of the Parties as reflected in the
original provision. The remainder of this Agreement,
or the application of such provision to persons or
circumstances other than those as to which it is held
invalid, shall not be affected thereby, and each
provision of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
(2) Agreement Addresses Two Separate Sites. It is
understood and acknowledged by the Parties to this
Agreement that the Agreement addresses XXXXX'x
obligations and rights with respect to two different
Sites, and termination of this Agreement with respect
to rights and obligations of the Parties in
connection with one of the Two Sites shall not
automatically result in termination of the Agreement
with respect to rights and obligations of the Parties
in connection with the other of the Two Sites.
H. No Waiver. No waiver by any Party of any default by another
Party in the performance of any provision of this Agreement
shall operate as or be construed as a waiver of any future
default, whether like or different in character.
I. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one
original Agreement.
J. Rule of Construction. The Parties hereto acknowledge that they
each enter into this Agreement after having had an opportunity
for thorough review by, and on advice of, their respective
legal counsel. The judicial rule of construction requiring or
allowing an instrument to be construed to the detriment of or
against the interests of the maker thereof shall not apply to
this Agreement.
K. Attorneys Fees. In the event of any dispute between or among
the Parties hereto not involving third party claims to which
the indemnity applies, the Prevailing Party in such dispute
shall be entitled to recover from the other
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or others reasonable attorneys fees, disbursements, and costs
incurred directly in connection with such dispute and the
resolution thereof. The "Prevailing Party," for purposes of
this agreement, shall be deemed to be the Party which obtains
substantially all of the result sought, whether by dismissal,
award or judgment. In no event shall a Party bringing any
claim, demand, arbitration or suit for monetary damages be
entitled to recover attorneys fees where any final award or
judgment does not exceed a bona-fide offer of settlement or
judgment made by the other party.
Executed by the undersigned duly authorized representatives to be
effective as of the Effective Date as set forth above.
XXXXX International, Inc.
By: /s/ Xxxxx Vain
Title: President
Date: July 13, 1999
Xxxxxxx-Xxxxxxx Company
By: /s/ Xxxxx X. Xxxxxxxx
Title: Executive Vice President and CFO
Date: July 13, 1999
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List of Exhibits to Remediation Agreement
-----------------------------------------
Exhibit A: Description of Xxxxxxx-Xxxxxxx Lease Arrangements, 0000
Xxxxxxxx Xxx., Xxxx Xxxx, XX
Exhibit B: Hillview Avenue Order for Xxxxxxx-Xxxxxxx Company Site, 0000
Xxxxxxxx Xxxxxx, Xxxx Xxxx, XX
Exhibit C: Regional Order for Hillview-Xxxxxx Area, Barron Park
Neighborhood & Matadero Creek, Palo Alto, California
Exhibit D: List of the "Regional Agreements"
Exhibit E: XXXXX Planned Services and Annual Estimated Payment Schedule
Exhibit F: XXXXX Schedule of Costs
Exhibit G: Schedule of Pending Claims Against XXXXX
Exhibit H: Form of Cleanup Cost Cap ("CCC") Insurance Policy
Exhibit I: Form of Pollution Legal Liability ("PLL") Insurance Policy
