SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and
Release of All Claims ("Agreement") is entered into by Plaintiff
Board of Water Supply of the County of Maui ("Plaintiff'), on the one
hand, and The Dow Chemical Company, Occidental Chemical Corporation,
successor-in-interest to Occidental Chemical Company, Occidental Petroleum
Corporation, Shell Oil Company, individually and dba Shell Chemical Company,
AMVAC Chemical Corporation, American Vanguard Corporation, Brewer Environmental
Industries LLC, Maui Pineapple Company, Ltd. and Maui Land and Pineapple
Company, Inc. (collectively "Defendants"), on the other hand.
RECITALS
Case Name:
1. There
is now pending in the Second Circuit Court of the State of Hawaii a civil
action entitled "Board of Water
Supply of the County of Maui v. Shell Oil Company, et al.," Civil Case
No. 96-0370(1) (the "Action").
Intent:
2. Plaintiff and Defendants have
entered into this Agreement to resolve with finality the Action, as well as all
past, pending, potential, continuing and future DBCP claims between them and to
avoid the expense of further litigation.
3. In consideration for this
Agreement, Defendants agree to pay as tort damages $3,000,000 in settlement of
the Action, consisting of the sums of $1,791,231 for the capital cost of GAC
facilities for the Napili A well, $404,769 for certain past DBCP related costs,
and $804,000 for the cost of the Hamakuapoko 1999 Drought Emergency GAC
facility. Defendants also agree (subject to certain limitations) to pay certain
sums for the installation and operation of carbon filtration systems
(hereinafter “GAC”) or alternative remedies to assist Plaintiff in complying
with the Maximum Contaminant Level (“MCL”) for DBCP on the Island of Maui until
September 1, 2039 (a period of forty (40) years).
DEFINITIONS
4. The following definitions apply
throughout this Agreement:
a. "Defendants", as the
term is used throughout this Agreement, refers collectively to defendants The
Dow Chemical Company, Occidental Chemical Corporation, successor- in-interest
to Occidental Chemical Company, Occidental Petroleum Corporation, Shell Oil
Company, individually and dba Shell Chemical Company, AMVAC Chemical
Corporation, American Vanguard Corporation, and Brewer Environmental Industries,
LLC, and third-party defendants Maui Land and Pineapple Company, Inc., and Maui
Pineapple Company, Ltd. and each of them, and all of their predecessors and
successors, their current and former parent and subsidiary companies, divisions
and affiliates.
b. "DBCP" refers to
1,2-dibromo-3-chloropropane, and all products containing said compound,
including, without limitation, Dow "Fumazone," Occidental
"BBC" and "DBCP," Nematocide Granules 50, Nematocide 12.1
EM, Nematocide 15.1 EM, Nematocide Solution 17.1 and Shell "Nemagon".
c. The term "Maximum
Contaminant Level" or "MCL" refers to a limit concerning the
concentration of DBCP in drinking water supplies enforced by a public agency
which applies to Plaintiff. At present, the MCL for DBCP enforced by the Hawaii
Department of Health ("DOH") is 40 parts per trillion (ppt), or 0.04
parts per billion (ppb). The parties anticipate that during the period covered
by this Agreement the name of the governmental entity enforcing the MCL, the
numerical limit, and/or the terminology used to describe the limit may change.
This Agreement is intended to secure compliance with whatever MCL is applicable
and enforceable at the relevant time during the term of this Agreement.
d. The terms “Exceeds the MCL” or
“Exceeded the MCL” refer to a potential situation where either: (1) Plaintiff's
well exceeds the MCL for DBCP when tested for the applicable regulatory period;
(2) a regulatory authority directs Plaintiff to stop using a well or refrain
from connecting a well to its water system unless Plaintiff remediates DBCP in
the well; or (3) the well is tested quarterly and the total of such quarterly
test results exceeds the applicable MCL when divided by four (4).
e. “CPI” refers to the Consumer
Price Index, all urban consumers, water and sewerage maintenance, issued by the
U.S. Bureau of Labor Statistics, or its successor, as adjusted for projects in
Hawaii.
f.
(i) “Napili A” refers to Plaintiff's well, Hawaii State No.
5838-01.
(ii)
“Honokahua A” refers to Plaintiff's well, State No. 5838-03.
(iii)
“Hamakuapoko 1” refers to Plaintiff's well, State No. 5420-02.
(iv)
“Hamakuapoko 2” refers to Plaintiff's well, State No. 5320-01.
(v) “Haiku
well” refers to Plaintiff's well, State No. 5419-01.
g.
"Existing Wells" refers to all wells on the Island of Maui which were
drilled, owned, and/or operated by Plaintiff before the effective date of this
Agreement.
h. "Hamakuapoko 1999 Drought
Emergency GAC" refers to the temporary installation of GAC on Hamakuapoko
Wells Nos. 1 and 2 during the 1999 Upcountry Drought Emergency.
i.
"Future Wells" refers to drinking water wells on the Island of Maui,
which are drilled and/or acquired by Plaintiff after the effective date of this
Agreement.
j. The
term “GAC” refers to granular activated carbon facilities for removal of DBCP
from water.
k. The term "O&M"
refers to the cost of operation and maintenance of GAC or other method used to
remove DBCP from water, including, but not limited to, vessel replacement due
to age and/or wear and tear.
1. "Regularly Scheduled Well
Test" currently means a quarterly raw water analysis conducted by or on
behalf of Plaintiff, or for such other period as may be required by any state
or federal law or regulator.
m. The term "Regular
Use" means a Plaintiff well that has a utilization rate of 10% or more,
averaged over a year where water from the well is introduced into the water
distribution system.
n. The term "In
Operation" refers to that period of time (measured in days) when GAC is
installed on an active Plaintiff well and: (1) it is actually removing DBCP
from the water; (2) it is not removing DBCP because the well on which it is
installed is not pumping due to regular water demand fluctuations; or (3) it is
undergoing ordinary maintenance or carbon change-out.
o.
"Defendants' Representative" refers to the law firm of Filice, Brown,
Eassa & McLeod, LLP, 1999 Harrison Street, 18th Floor, Oakland,
California 94612-3541, or such other successor, person or entity designated by
Detendants in the future.
p. “Plaintiff's Representatives”
refers to the Corporation Counsel, County of Maui, 200 South High Street,
Wailuku, Maui, Hawaii, and Miller, Sher & Sawyer, A Professional
Corporation, 7 Park Center, Suite 1, Sacramento, California 95825, or such
other successor, person or entity designated by Plaintiff in the future.
q. The
term "Notice to Proceed" refers to a notice from Plaintiff to a
contractor to construct a GAC facility, or alternative technology facility.
r. "DOH" refers to the Hawaii Department of Health or any successor entity charged by the State of Hawaii with regulating water quality.
s. “Event of Default” refers to
any of the following events:
(i)
under the terms of paragraph 46, Defendants fail to pay
Capital Costs within 30 days of receiving a Notice to Proceed;
(ii)
under the terms of Paragraph 47, Defendants fail to make a
timely payment for O&M Costs;
(iii)
under the terms of Paragraph 48, Defendants fail to provide
a replacement Letter of Credit.
5. As
more specifically described below, in consideration for this Agreement:
Past and
Present Costs
6. On or before September 1, 1999, Defendants will make a cash payment as tort damages to Plaintiff and its attorneys of record, "Miller, Sher & Sawyer, a professional corporation," in the amount of Three Million Dollars ($3,000,000), provided Plaintiff has executed this Agreement. This represents a total of $1,791,231 for the capital cost of GAC facilities for the Napili A well, $804,000 for the cost of the Hamakuapoko 1999 Drought Emergency GAC, and $404,769 for other past DBCP-related costs.
7. Third-party defendant, Maui Land and Pineapple Company hereby releases any claim for past transfers of land to Plaintiff in West Maui. Plaintiff will participate in separate negotiations with Maui Land and Pineapple Company to install, operate and maintain a 2.5 inch high density polyethylene (HDPE) pipeline, or its equivalent, and appurtenances, across Maui Land and Pineapple Company land, to connect with the nearest connection to Plaintiff's water system in the Honokahou Valley.
8. It is anticipated that during the term of this Agreement the concentration of DBCP in the Hamakuapoko 1 and 2, Honokahua A and Haiku wells may Exceed the MCL. Defendants will reimburse Plaintiff during the term of this Agreement for 100% of the capital costs of GAC for each such Well that Exceeds the MCL. Defendants have agreed to make specified payments, as set forth in subparagraphs (i) through (iv), to defray the expense of installing GAC on these wells.
i. Defendants shall pay 100% of the sum of One Million Eight
Hundred Thousand Dollars ($1,800,000) for wells that can be treated with two
(2) GAC vessels (that is, a well with a yield of 750 gallons per minute
("gpm") or less);
ii. Defendants shall pay 100% of
the sum of $2,400,000 for well(s) which can be treated with three GAC vessels
(that is, well(s) with a yield of more than 750 gpm and less than 1,500 gpm);
iii.
Defendants shall pay 100% of the sum of $600,000 for each additional 750 gpm of
yield in a well at or above 1,500 gpm, in addition to the base amount of $2.4
million;
iv.
Defendants' obligations to pay capital costs under this paragraph shall be reduced by $100,000 for wells with
no pump or a non oil-lubed pump;
v. Capital
costs to be paid under this Agreement after January 1, 2000 shall be adjusted
by the CPI annually, pursuant to Paragraph No. 29 (CPI Adjustment).
9. It is anticipated during the term of this Agreement that the concentration of DBCP in some other Existing and Future Wells may Exceed the MCL. Defendants will reimburse Plaintiff during the term of this Agreement for the capital costs of GAC for each other Existing and Future Well that Exceeds the MCL. Defendants have agreed to make specified payments, as set forth in subparagraphs (i) through (iv), to defray the expense of installing GAC on these wells.
i. Defendants shall pay 90% of the sum of One Million Eight Hundred
Thousand Dollars ($1,800,000) for wells that can be treated with two (2) GAC
vessels (that is, a well with a yield of 750 gallons per minute
("gpm") or less);
ii. Defendants shall pay 90% of the sum of $2,400,000 for well(s)
which can be treated with three GAC vessels (that is, well(s) with a yield of
more than 750 gpm and less than 1,500 gpm);
iii. Defendants shall pay 90% of the sum of
$600,000 for each additional 750 gpm of well capacity at or above 1,500 gpm, in
addition to the base amount of $2.4 million;
iv. Defendants' obligations to pay capital costs under this
paragraph shall be reduced by $100,000 for all future wells and existing wells
with no pump or a non oil- lubed pump;
v. Capital costs to be paid under this
Agreement after January 1, 2000 shall be adjusted by the CPI annually, pursuant
to Paragraph No. 29 (CPI Adjustment).
10. Defendants will reimburse Plaintiff during the term of this Agreement for O&M of GAC for each Plaintiff well that Exceeds the MCL as follows: Napili A, Honokahua A, Hamakuapoko 1 and 2, and the Haiku Wells shall each qualify for 100% of O&M at the annual rate of $68,500 for a two-vessel facility, $74,500 for a three-vessel facility, and an additional $6,000 for O&M for each additional vessel, adjusted by the CPI as set forth in Paragraph No. 29. Existing and Future Wells which are treated with GAC under this Agreement shall qualify for O&M at 90% of the O&M per vessel rate set forth in this paragraph, adjusted by the CPI as set forth in Paragraph No. 29. The number of vessels for which Defendants will pay will be based on well yield and will be determined pursuant to Paragraph No. 20 (for the Honokahua A, Hamakuapoko 1 and 2, and Haiku wells) or Paragraph No. 23 (for other Existing or Future Wells).
i. The O&M payments specified above shall
be made on or before January 10, 2000, and each successive year thereafter. The
payments made shall be adjusted by the CPI annually pursuant to Paragraph No.
29.
ii. Defendants' obligation to pay annual
O&M under this Agreement ends on September 1, 2039.
11. The number of wells for which Defendants will be obligated to pay for the capital and O&M costs for GAC is limited to fifty (50) wells.
12. Any obligation of Defendants to make any payment under this Agreement will end on September 1, 2039, provided that all payments due as of that date have been made.
Dismissal
of Actions
13. Plaintiff agrees to dismiss with prejudice Defendants and the Action in its entirety, and Plaintiff further agrees to release and waive all rights to bring any future DBCP claims, lawsuits or actions arising in whole or in part from the past, present, continuing or future presence of DBCP in Plaintiffs wells on the Island of Maui, subject to the exceptions set forth in Paragraph 42 [indemnity] and Paragraph 43 [claims related to the Islands of Molokai and/or Lanai].
Denial of
Liability
14. This Agreement is not an admission of liability, nor an admission that any of the facts alleged by Plaintiff are true, nor an admission that the Action or any portion thereof asserted by Plaintiff are well-founded, and Defendants deny that they, or any of them, are liable to Plaintiff for any of the claims asserted in the Action.
Joint
Tortfeasor Release
15. It is understood, agreed, and intended as
follows:
a. The release contained in
Paragraph 57 of this Agreement (the "Release") is intended to be and
shall be construed as a joint tortfeasor release, and any damages otherwise
recoverable by the Board against any other persons (natural, corporate, or
otherwise) in connection with events and transactions which are the subject of
the release shall be and hereby are reduced to the extent of (1) the
consideration paid for this Release, or (2) the pro rata share that Defendants
would be responsible to pay to the Board [fit were determined that Defendants
were jointly liable to the Board, whichever is greater.
b. The Release is given and taken
pursuant to the provisions of the Uniform Contribution Among Tortfeasors Act,
sections 663-11 through 663-17, Hawaii Revised Statutes, as amended
("UCATA"), and shall operate to release Defendants from any and all
liability to make contribution for the Covered Claims (as that term is defined
in the statute) to any person found to be a joint tortfeasor with Defendants.
c. The parties hereto intend that
the Release and provisions of UCATA shall be applicable to all Covered Claims,
whether asserted under federal statutes or under Hawaii statutes or under
common law, including claims to which UCATA may not otherwise (in the absence
of this Release) apply.
Payment
for Past and Present Costs
16. Plaintiff agrees to release Defendants from all claims for DBCP-related costs incurred to date by Plaintiff, including, but not limited to, the capital costs of GAC on the Napili A well, the costs of the 1999 Hamakuapoko Drought Emergency GAC, and certain other costs, for which Defendants agree to pay Plaintiff as tort damages the amount of Three Million Dollars ($3,000,000), payable to “Board of Water Supply of the County of Maui and its attorneys of record, Miller, Sher & Sawyer, a professional corporation,” on or before September 1, 1999, if Plaintiff has executed this Agreement.
Payment
for O&M Costs
17. On or before January 10 of each year, Defendants will reimburse Plaintiff for O&M of GAC for the preceding year in conformity with this Agreement, if GAC was in place and In Operation during the preceding year. The first payment will be made on or before January 10, 2000, for the portion of 1999, if any, that such facilities were in operation. Defendants will reimburse Plaintiff for O&M on the Hamakuapoko 1999 Drought Emergency GAC for each month GAC was in place and in operation at least 10% of the month at a monthly rate of $5,708. Reimbursement for O&M costs will be requested and paid in accordance with the terms of paragraph 47.
18. The amounts payable for O&M for GAC will be adjusted by the CPI annually, pursuant to Paragraph No. 29.
CERTAIN
WELLS THAT EXCEED THE MCL
19. If the concentration of DBCP in the Honokahua A, Hamakuapoko 1, Hamakuapoko 2, and/or the Haiku wells Exceeds the MCL, then upon issuance of a Notice to Proceed for installation of GAC facilities on any such well, Defendants will pay 100% of the capital costs and O&M for GAC on those wells.
Capital
Costs
20. Capital costs associated with
installation of GAC for the Honokahua A, Hamakuapoko 1, Hamakuapoko 2, and/or
the Haiku wells are determined as follows:
a. Plaintiff will determine the
number of GAC vessels to be installed for a well(s) that Exceeds the MCL based
on actual peak well yield capacity as follows: Up to 750 gpm (two vessel), and
751-1,500 gpm (three vessels). One additional vessel will be installed for each
additional 750 gpm increment, or fractions thereof, in actual peak well
capacity. Plaintiff may locate vessels on a well site, a remote site or at a
centralized site at its option.
b. The
capital costs of which Defendants will pay 100% are as follows:
two vessels -- $1,800,000, three vessels -- $2, 400,000.
Defendants will pay 100% of an additional $600,000 for each additional vessel
above three. Defendants' obligations to pay capital costs under this paragraph
shall be reduced by $100,000 for any of these wells with no pump or a non
oil-lubed pump. The foregoing amounts are deemed to include, but are not
limited to, the costs of land acquisition, design, and construction of GAC.
c. Subject to Defendants'
obligation to reinstall GAC on previously treated wells from which GAC has been
removed, capital costs of which Defendants will pay 100% do not include the
costs of GAC vessel replacement, including due to age or wear and tear. (See
Paragraph No. 4 k.) Such vessel replacement costs are included in, and/or to be
paid by Plaintiff out of, O&M.
d. Reimbursement will be requested
and paid in accordance with Paragraph No. 46.
21. The O&M costs on the Honokahua A, Hamakuapoko 1, Hamakuapoko 2, and/or Haiku wells are determined as follows:
a. O&M costs will be based on
well yield as follows: Up to 750 gpm (two vessels), $68,500/year; 751-1,500 gpm
(three vessels), $74,500/year; and an additional $6,000/year for each
additional 750 gpm of well yield.
b. On or before January 10 of each
year, for each such well, Defendants will reimburse Plaintiff for 100 percent
of the O&M of GAC for the preceding year if GAC was In Operation on such
well during the preceding year.
c. For any such well for which GAC
has been In Operation for less than one year, Defendants' obligation to
reimburse Plaintiff for O&M will be limited to 100% of the monthly per
vessel rate set forth in Paragraph No. 21 e. for O&M of GAC for each month
GAC was In Operation.
d. Defendants' obligation to pay
annual O&M on any such well, as set forth above, will be conditioned on
Plaintiff’s Regular Use of such well. For any such well with an average annual
utilization rate of less than 10%, Defendants will pay O&M of $1,000 for
such well for each month GAC was In Operation if GAC was not installed and In
Operation for the entire year.
e. For any such well at which GAC
was In Operation for less than one year, the payment will be a calculated
amount for each month the GAC was In Operation for more than fifteen (15) days.
The amount paid for each month under this paragraph will be calculated by
dividing 12 into the annual rate for O&M payments set forth under
subparagraph (a) above.
f. The amounts payable for capital
costs for the Honokahua A, Hamakuapoko 1, Hamakuapoko 2, and/or Haiku wells
under Paragraph 20 will be adjusted by the CPI annually, pursuant to Paragraph
No. 29. The amounts payable for O&M for such wells under Paragraph No. 21
will be adjusted by the CPI annually, pursuant to Paragraph No. 29.
g.
Reimbursement will be requested and paid in accordance with the terms of
Paragraph No. 47.
22. Where Existing or Future Wells Exceed the MCL, Defendants will pay 90% of the capital costs and O&M for GAC on those Wells, upon Plaintiff's issuance of a Notice to Proceed for installation of GAC facilities on any Existing or Future Wells.
Capital
Costs
23. Capital costs associated with installation of GAC for Existing or Future Wells are determined as follows:
a. Plaintiff will determine the
number of GAC vessels to be installed for a well(s) that Exceeds the MCL based
on actual peak well yield capacity as follows: Up to 750 gpm (two vessel), and
751-1,500 gpm (three vessels). One additional vessel will be installed for each
additional 750 gpm increment, or fractions thereof, in actual peak well
capacity. Plaintiff may locate vessels on a well site, a remote site or at a
centralized site at its option.
b. The
capital costs of which Defendants will pay 90% are as follows:
two vessels -- $1,800,000, three
vessels -- $2, 400,000. Defendants will pay 100% of an additional $600,000 for
each additional vessel above three. Defendants' obligations to pay capital
costs under this paragraph shall be reduced by ninety percent (90%) of $100,000
for all future wells and for existing wells with no pump or a non oil-lubed
pump. The foregoing amounts are deemed to include, but are not limited to, the
costs of land acquisition, design, and construction of GAC.
c. Subject to Defendants'
obligation to reinstall GAC on previously treated wells from which GAC has been
removed, capital costs of which Defendants will pay 90% do not include the
costs of GAC vessel replacement, including due to age or wear and tear. (See
Paragraph No. 4 k.) Such vessel replacement costs are included in, and/or to be
paid by Plaintiff out of, O&M.
d. Reimbursement will be requested
and paid in accordance with Paragraph No. 46.
24. The O&M costs on Existing and Future Wells are determined as follows:
a. O&M costs will be based on
well yield as follows: Up to 750 gpm (two vessels), $68,500/year; 751-1,500 gpm
(three vessels), $74,500/year; and an additional $6,000/year for each
additional 750 gpm of well yield.
b. On or before January 10 of each
year, for each Existing and/or Future Well, Defendants will reimburse Plaintiff
for 90 percent of the O&M of GAC for the preceding calendar year, if GAC
was In Operation on such Existing or Future Well for the entire year.
c. For any
Existing and/or Future Well for which GAC has been In Operation for less than
one year, Defendants' obligation to reimburse Plaintiff for O&M will be
limited to 90% of the monthly per vessel rate set forth in Paragraph No. 24 e.
for O&M of GAC for each month GAC was In Operation.
d. Defendants' obligation to pay
annual O&M on any Existing or Future Well, as set forth above, will be
conditioned on Plaintiff’s Regular Use of such Well. For any Existing or Future
Well with an average annual utilization rate of less than 10%, Defendants will
pay O&M of $1,000 for such Well for each month GAC was in operation (if GAC
was not installed and In Operation for the entire year).
e. For any Existing and/or Future
Well at which GAC was In Operation for less than one year, the payment will be
a calculated amount for each month the GAC was In Operation for more than
fifteen (15) days. The amount paid for each month under this paragraph will be
calculated by dividing 12 into the annual rate for O&M payments set forth
under subparagraph (a) above.
f.
Reimbursement will be requested and paid in accordance with the terms of
Paragraph No. 47.
25. The amounts payable for capital costs for wells under Paragraphs 20 and 23 will be adjusted by the CPI annually, pursuant to Paragraph No. 29. The amounts payable for O&M for wells under Paragraphs 21 and 24 will also be adjusted by the CPI annually, pursuant to Paragraph No. 29.
26. Future Wells (other than wells under construction as of the date this Agreement is fully executed) constructed by Plaintiff or contractors retained by Plaintiff, must be in substantial compliance with the following procedures before Plaintiff may obtain reimbursement from
Defendants for the cost of constructing, operating or
maintaining GAC on such well.
a. Plaintiff shall select a
proposed well site and notify Defendants' representative thereof, and provide
Defendants with available relevant information concerning the presence of DBCP
in groundwater underlying the site, including historic land use information,
hydrogeologic characteristics and DBCP test results (if any).
b. Defendants shall have 21 days
after receipt of said notice to notify Plaintiff that: (1) Defendants do not
object to Plaintiff proceeding with the production well at that location, or
(2) a pilot test well should be drilled and tested at that location (at
defendants' sole expense), or (3) an alternative well site should be
considered.
c. If Defendants request a pilot
test well at the proposed well site, Defendants shall have 15 days after
receipt of test results from that pilot test well to notify Plaintiff that
Defendants do not object to Plaintiff proceeding with the production well at
that location or that an alternative well site should be considered.
d. If Defendants notify Plaintiff
to consider an alternative well site, Defendants' representative must meet and
confer with Plaintiff's representative to select an alternative site at least
one-half mile from any existing or planned Plaintiff well, and within one-half
mile of the connection to Plaintiff's water system that would have been
serviced by the original well site. After consideration of potential
environmental issues, Plaintiff shall not unreasonably withhold consent for the
selection of alternative well sites. If Plaintiff or a controlling regulatory
entity determines that a proposed alternative well site is too environmentally
sensitive to be used for a production well, Plaintiff shall promptly notify
Defendants of that determination so that the parties may consider additional
alternative well sites. Potential environmental issues may be identified
through existing documents (if any) prepared pursuant to the Hawaii
Environmental Policy Act, or otherwise, that assess the original well site and
include the alternative well site as a project alternative. Nothing in this
Agreement shall impose any additional environmental analysis obligations on
Plaintiff under the Hawaii Environmental Policy Act or otherwise.
e. The parties shall also meet and
confer regarding the estimated cost of constructing, operating, and maintaining
the well at the alternative well site. The parties intend that should the
construction of a well proceed at an alternative well site, any estimated
increased costs (compared to the original well site) incurred in connection
with constructing, connecting, operating and maintaining a well at the
alternative site shall be borne exclusively by Defendants including, but not
limited to:
(i) the
cost of acquiring at least 20,000 square feet of land for the well site and any
treatment facilities which may be required;
(ii) the cost of drilling, constructing, and
connecting the well to
Plaintiff’s distribution system, all in conformance with Plaintiff’s
standard specifications and construction standards;
(iii) the cost of any electrical costs (see
attached formula, Exhibit A) and/or pressure reducing facilities associated
with the alternative site;
(iv) the cost of constructing and maintaining
and/or obtaining easements for any access road to the replacement well;
(v) the cost of obtaining all necessary
permits and authorizations, including, but not limited to, those required by
the Hawaii Environmental Policy Act and the Department of Land and Natural
Resources and/or successor legislation;
(vi) the amount of increased allowance for
change orders, based on a 10 percent allowance for such change orders;
(vii) and all other reasonably anticipated costs
associated with the project.
In calculating any increased costs
associated with the alternative well site, the parties will subtract the amount
Plaintiff would have expended in constructing, connecting, operating and
maintaining the well at the original well site from the costs of constructing,
connecting, operating, and maintaining the well at the alternative site.
f. Upon completion of the meet and
confer process, Plaintiff shall serve a written notice upon Defendants with
Plaintiff's itemized comparison of the reasonably anticipated cost of
constructing, connecting, operating, and maintaining a well at the original and
alternative well sites. If the estimated costs at the alternative site are
higher than those estimated at the original well site, Plaintiff may make a
demand on Defendants for those increased costs ("Increased Cost
Demand").
g. Within twenty-one (21) calendar
days of receipt of said itemized comparison, Defendants shall: (1) inform
Plaintiff that Defendants do not object to proceeding with construction of a
well at the original well site; (2) inform Plaintiff that Defendants agree to
pay the Increased Cost Demand; or (3) serve a written notice of specific
objections to the Increased Cost Demand together with an estimate by a
qualified contractor to perform the work at the alternative well site to Plaintiff's
specifications for construction of a well.
h. If the parties are unable to
agree on the selection and/or increased cost of the alternative well site,
either party may elect to arbitrate the dispute as provided in Paragraph 54. In
any such arbitration, Defendants shall bear the burden of proof'.
i. In the event new or materially
different environmental issues associated with the selection of the alternative
well site ("New Issues") are a substantial factor leading to
environmental litigation by a third party, then either: (1) Defendants shall
assume the cost of defense of that litigation; or (2) if Defendants do not
assume the cost of defense of that litigation, Plaintiff may proceed with
construction at the original well site with reimbursement by Defendants if the
well exceeds the MCL as specified in this Agreement.
j. If
Defendants fail to serve Plaintiff with a timely objection to the Increased
Cost Demand described above, Plaintiff may elect to proceed with construction
at the original well site.
k. If the
well constructed at an alternative site fails to yield water that meets all
then applicable water quality standards, Defendants shall pay the full cost of
installing treatment facilities to correct any such deficiency and shall
reimburse Plaintiff for the full cost of operating and maintaining any such
equipment. Defendants' obligation to reimburse Plaintiff for such treatment
facilities shall not apply to disinfection facilities or any treatment or other
water quality technology which Plaintiff is required to install on all
Plaintiff wells In Operation, other than wells treated with GAC.
1. Any
well constructed at an alternative site must yield at least eighty percent
(80%) as much water (gallons per minute ("gpm")) as the original site
selected by Plaintiff.
m. If the well constructed at the
alternative well site fails to operate as provided in the previous
sub-paragraph, Defendants may elect to construct at their sole expense an
additional well to Plaintiff’s standards at another site approved by Plaintiff
so that the combined flow from both wells equals or exceeds that anticipated at
the original proposed site.
n. If Defendants pay the Increased Cost Demand or amount
determined in Arbitration under this Agreement, then: (1) any increased capital
costs will be paid within 30 days of Defendants’ receipt of a notice to proceed
to a contractor to construct a well at the alternative well site; and (2) any
increased operations and maintenance costs will be adjusted by the CPI under
Paragraph No. 29 and January 10 for each preceding year the well is in
operation during the term of this Agreement.
27. If a regulatory authority incorrectly, mistakenly, or in excess of its authority directs Plaintiff to stop using a well or refrain from connecting a well to its water system unless Plaintiff remediates DBCP in the well, Plaintiff may, within 60 days of receipt of the directive, petition the regulatory authority for reconsideration of the directive. If Plaintiff chooses not to petition the regulatory authority for reconsideration of the directive, Plaintiff shall notify Defendants and Defendants, at their own expense, may choose to challenge the regulatory authority's decision. Plaintiff shall provide Defendants with information from its files concerning the status of the well in question.
28. For any Plaintiff well on which GAC or other remediation equipment to remove DBCP is installed, Defendants' obligation to pay O&M shall cease upon the occurrence of the following:
a. If any Regularly Scheduled Well
Test for DBCP results in a concentration below the MCL, a second confirming
sample will be taken within ten (10) days. If the average of those two samples
is below the applicable DBCP MCL, the well is to be tested for the time period
specified by the then applicable drinking water regulation. If the average of
those tests is below the applicable MCL, Plaintiff may within sixty (60) days
of receipt of the laboratory result for the last sample petition DOH for a permit
amendment allowing removal of GAC or other DBCP remediation equipment. If the
amendment is granted, Defendants' responsibility to pay O&M on the well is
terminated thirty (30) days alter notification to Plaintiff by DOH of the
amendment approval. If Plaintiff chooses not to petition DOH for a permit
amendment, Defendants' obligation to pay O&M on the well is terminated on
the thirtieth day after the events described in this paragraph.
b. Within 90 days, either DOH will
grant Plaintiff’s petition, or Plaintiff must make a good faith effort to
obtain such relief from DOH. If the petition is denied, Plaintiff shall again
petition DOH in a good faith effort to persuade DOH to grant the petition. If
the second petition is denied, Plaintiff shall notify Defendants and the
parties shall cooperate should Defendants, at their own expense, choose to
challenge the DOH decision in Plaintiff's name. Defendants' responsibility to
pay O&M on the site or well in question will cease 30 days after DOH grants
the petition.
c. Plaintiff is entitled to leave
the GAC or other DBCP remediation equipment in place and/or operate same at its
own expense for at least twelve (12) months after Defendants' obligation to pay
O&M on the well has ceased.
d. If GAC or other DBCP remediation
equipment has been removed from a well which has previously been treated and
which subsequently requires treatment, the cost of such treatment will be borne
by Defendants to the same extent as it was when GAC or other DBCP remediation
equipment was originally installed, and will not be counted twice against the
well limits set forth in Paragraph No. 30.
29. This Agreement contains provisions for: (a) Defendants' payment of specified sums for the installation of GAC, which are expressed in 1999 dollars, and O&M, which are expressed in 1999 dollars; and (b) credits and offsets to Defendants, which are expressed in 1999 dollars. All payments of capital costs and O&M made by Defendants to Plaintiff and all credits and offsets to which Defendants are entitled under this Agreement for the year beginning January 1, 2000, and each year thereafter will be adjusted according to the CPI. The CPI adjustment shall operate as follows: The payments made, and credits and offsets applied, for the year 2000 shall be adjusted to reflect inflation or deflation pursuant to the CPI, except as limited by this Paragraph, with each successive year's payments being similarly adjusted according to the prior year's inflation or deflation pursuant to the CPI.
a. For the purpose of calculating
inflation or deflation for capital costs, 1999 expressed dollars (as
established by the June 1999 figure for the CPI) are to be used in this
Agreement and are to be modified annually using the June CPI for subsequent
years.
b. For the purpose of calculating
inflation or deflation for O & M, 1999 expressed dollars (as established by
the June 1999 figure for the CPI) are to be used in this Agreement and are to
be modified annually using the June CPI for subsequent years. The first CPI
adjustment to O&M shall commence with the January 10, 2001 payment using
the June 2000 CPI.
LIMIT ON NUMBER OF WELLS FOR WHICH DEFENDANTS MAY BE RESPONSIBLE
30. The number of wells for which Defendants will be obligated to pay for the capital and O&M costs for GAC is limited to fifty (50) wells.
31. All obligations on the part of Defendants under this Agreement, including but not limited to payments of capital costs and O&M to Plaintiff, end on September 1, 2039, provided that all payments due as of that date have been paid.
32. As GAC vessels become available when they are taken out of service on wells that no longer require DBCP remediation, Defendants may choose to move those units to another well requiring DBCP remediation. If Defendants pay for the installation or reinstallation of surplus GAC vessels, Defendants will receive a credit of $95,000 per vessel (adjusted by the CPI) to be applied to Defendants' portion of the capital cost of GAC on any well covered by this Agreement. Defendants will pay for the cost of moving, installing, inspecting, repairing and refilling these units, such activities to be performed by Plaintiff to Plaintiff’s standards.
33. If a GAC vessel is moved to another site, and the well on which it had previously been installed once again Exceeds the MCL, then Defendants shall pay the appropriate portion of capital costs and O&M (either 90% or 100%) required to install or reinstall and operate GAC on that well.
34. Defendants may propose that Plaintiff utilize a less expensive wellhead treatment method approved by U.S. EPA or State of Hawaii for the remediation of DBCP. Defendants agree to pay the actual cost of designing, procuring, and installing all appropriate equipment and modifications to existing equipment, including capital and O&M costs under the conditions of this Agreement, on any well on which such equipment is installed. If any such less expensive wellhead treatment method is installed, then in lieu of O&M payments for GAC, Defendants will reimburse Plaintiff for the actual cost of O&M for the less expensive wellhead treatment method pursuant to Paragraph 47.
35. After meeting and conferring, Plaintiff's or Defendants' representatives may submit any disputed claim concerning the reliability, practicability, or efficacy, or actual cost, including capital and O&M costs, of employing any less expensive well-head treatment to binding arbitration pursuant to Paragraph 54 (Arbitration) of this Agreement. Notwithstanding any other provision of this Agreement, Plaintiff shall not be required to use any technology approved by the EPA, but disapproved by the DOH.
36. Plaintiff may elect to implement alternative remedies for DB CP. If Plaintiff elects to implement an alternative remedy, Defendants will only be obligated to pay the lesser of either: (a) 100% of the capital and O&M costs of the alternative remedy, or (b) 90% of the capital and O&M costs for the appropriately sized GAC facility, based on the capacity of the subject well(s), as appropriate. Plaintiff and Defendants shall submit any disputed claim concerning the actual cost, including capital and O&M costs, of any alternative remedy for DBCP to binding arbitration pursuant to Paragraph 54 (Arbitration) of this Agreement.
37. If
EPA or DOH directs Plaintiff that modifications or additions to GAC (other than
disinfection equipment) are required to continue use of GAC solely for the
removal of DBCP, and Plaintiff and Defendants are unable to agree on the amount
of the reasonably necessary expense of such treatment that should be borne by
Defendants, Plaintiff and Defendants will submit Plaintiff’s claim for the
reasonably necessary expense of such treatment to binding arbitration pursuant
to Paragraph 54 (Arbitration) of this Agreement.
38. The activities set forth in Paragraph Nos. 34 through 37 are subject to approval by both Plaintiff and Defendants; said approval will not be unreasonably withheld.
39. Plaintiff and Defendants each retain the right to challenge any reported laboratory test result for DBCP and may take the steps necessary, at their own cost, to verify the result, including such steps as obtaining a confirming sample for analysis or requesting that the laboratory confirm its calculations or reanalyze the initial sample.
40. Plaintiff will provide Defendants' Representative with a complete report of all DBCP test results from Plaintiff production wells every six months throughout the duration of this Agreement on the first business days of May and December of each year. The report need only contain the DBCP results for the year preceding the date of the report.
41. Defendants may, at their own expense, participate in Plaintiff's regularly scheduled sampling, take split samples, and make reasonable site inspections upon request; said requests will not be unreasonably made by Defendants.
42. Plaintiff will retain its right, if any, to seek indemnity from Defendants if it is sued by a third party for personal injuries or property damage allegedly attributable to DBCP. Plaintiff' certifies that it is presently unaware of any such claims.
43. Notwithstanding any other provision of this Agreement, Plaintiff will retain its right, if any, to bring any future DBCP claims, lawsuits, or actions, including but not limited to, claims for compensatory and/or punitive damages, arising in whole or in part from the past, present, continuing, or future presence of DBCP on the Islands of Lanai and Molokai.
44. All parties will bear their own costs and attorney's fees incurred in the Action.
45. As to Plaintiff, Defendants will waive costs and attorneys' fees for all dismissed Defendants.
Capital
Costs
46. In addition to the conditions that must be met under this Agreement before Defendants' obligations to pay future capital costs arise under this Agreement, Plaintiff must submit to Defendants' Representative and representatives for defendants AMVAC, Occidental, and Maui Land and Pineapple Company (the names and addresses of which will be provided and updated by Defendants' Representatives) a copy of a Notice to Proceed to a contractor to construct a GAC or alternative technology facility to treat a well that Exceeds the MCL. Within 30 days of Defendants' receipt of the Notice to Proceed, Defendants must pay Plaintiff the amount owed under the terms of this Agreement. In the event that Defendants fail to make timely payment, payment will be made under Paragraph 48 of this Agreement (Letter of Credit). Any disputed claims shall be submitted to arbitration pursuant to Paragraph 54, provided that Plaintiff shall be entitled to immediate payment pursuant to Paragraph 48, regardless of whether the claim is disputed.
47. In addition to the conditions that must be met under this Agreement before Defendants' obligations to pay future O&M arise under this Agreement, Plaintiff must submit by December 1 of each year starting in 2000 a qualifying claim for O&M that provides sufficient information to evaluate whether and to what extent Plaintiff's well(s) qualify for O&M payment. This will include, but not be limited to, DBCP test results and information concerning whether the wells were In Operation and In Regular Use during the preceding twelve months. Provided Plaintiff's O&M claim is timely submitted, Defendants shall make payment in the amount claimed by the following January 10. In the event Defendants fail to make timely payment, payment will be made under Paragraph 48 of this Agreement (Letter of Credit). Any disputed claims shall be submitted to arbitration pursuant to Paragraph 54, provided that Plaintiff shall be entitled to immediate payment pursuant to Paragraph 48, regardless of whether the claim is disputed. If Plaintiff fails to submit a timely claim (i.e., by December 1), then Defendants' obligation to make a timely payment (i.e., by January 10) shall be extended one day for each day Plaintiff's claim is late.
48. To secure the obligations of Defendants under this Agreement, and as a condition precedent to the obligations of Plaintiff hereunder, Defendants shall, at their sole cost and expense, furnish to Plaintiff, on or prior to October 1, 1999, and thereafter maintain during the entire term of this Agreement, continuing to a date thirty (30) days after the later of (i) September 1, 2039 or (ii) satisfaction of all Defendants' obligations to Plaintiff under this Agreement, an irrevocable standby letter of credit ("Letter of Credit") in favor of Plaintiff in form and substance reasonably satisfactory to Plaintiff, issued or confirmed by a United States banking institution having capital and surplus of not less than One Billion United States Dollars (USD 1,000,000,000) and advised by a banking institution with a banking office in Honolulu, Hawaii,
a. The Letter of Credit shall have
a principal amount of Twenty Million United States Dollars (USD 20,000,000),
and shall provide for payment to Plaintiff under this Agreement by a draft at
sight to which is attached Plaintiff’s Signed Statement (as defined in the
Letter of Credit). The draft at sight and the Signed Statement which shall be
conclusive that there has occurred an event of default under this Agreement and
any applicable cure period has lapsed. A draft at sight presented as the result
of an Event of Default related to claims under either Paragraph 46 or 47 will
be limited to the amount of the claim. A draft at sight presented as the result
of an Event of default based on the failure of the Defendants to renew the
Letter of Credit may be presented for the full amount of the Letter of Credit.
b. Should any Letter of Credit
furnished by Defendants hereunder expire prior to the term of this Agreement,
Defendants shall automatically provide Plaintiff with a replacement, in the
same tenor, no later than sixty (60) days prior to the expiration of the
then-current Letter of Credit. Failure to provide a replacement for a Letter of
Credit shall be an Event of Default under this Agreement, and shall permit
Plaintiff to draw on the then-current Letter of Credit as provided above.
Plaintiff’s realization of the amount payable under the Letter of Credit shall
not affect Plaintiff’s right to elect any other remedy on default available to
Plaintiff under this Agreement, or under applicable law.
c. Where Plaintiff draws on a
Letter of Credit because of the occurrence of an Event of Default based on the
failure of the Defendants to renew the Letter of Credit, the amount drawn on
the Letter of Credit shall first be applied to any then existing claims for
Capital Costs and/or O&M Costs under this Agreement and thereafter the
balance of the amount drawn shall be applied as credit against future claims
under the Agreement or reconveyed to the banking institution that issued the
Letter of Credit upon Defendants obtaining a new Letter of Credit.
d. The principal amount of the
Letter of Credit may be adjusted upon agreement of all the parties at the time
of any renewal or replacement of the Letter of Credit. In the absence of such
agreement, the principal amount of the Letter of Credit shall remain Twenty
Million United States Dollars (USD 20,000,000) so long as Defendants are
required to maintain a Letter of Credit under this Paragraph 48.
49. a. Upon Defendants' initial payment of $3,000,000 pursuant to
Paragraph 16 of this Agreement, Defendants shall be entitled to a one-time
credit against the amount otherwise payable for installation of permanent GAC
facilities on the Hamakuapoko Well Nos. 1 or 2 of $804,000, less the amount
described in Paragraph 32 (Re Use of GAC Vessels), if, at Defendants' option,
the vessels are used to treat any other well.
b. If any disputed claims under
this Agreement are resolved in favor of Defendants, any amount determined to
have been paid by Defendants in excess of the amount found to be due shall be
credited to Defendants to offset future obligations under this Agreement.
c. Any credit or offset to which
Defendants become entitled shall be applied to reduce the next occurring
obligation of Defendants related to capital cost, and Defendants shall owe no
additional amounts for capital costs until all credits and offsets to which
Defendants are entitled have been applied and exhausted. Except as provided in
this paragraph, and notwithstanding any other provision of this Agreement,
Plaintiff shall not be obligated to pay Defendants cash on any accumulated
credits or offsets. Except as otherwise set forth in this paragraph, any
credits remaining as of September 1, 2039, shall be extinguished. Credits
remaining as of September 1, 2039 that are the result of a claim made by
Plaintiff after September 1, 2038 and disputed by Defendants thereafter, where
the dispute is subsequently resolved in favor of Defendants, will be reimbursed
to Defendants within thirty (30) days of such resolution.
50. If Plaintiff receives a payment under this Agreement for a GAC project that is not constructed, Defendants shall receive a credit in the amount of such payment toward the capital cost of the next GAC project that would otherwise trigger a further payment by Defendants.
51. Defendants' Representative and Plaintiff's Representatives are the parties' respective designated contacts for all reports, correspondence, and notices concerning the subject matter of this Agreement. If another representative is substituted, Defendants or plaintiff, as appropriate, must provide written notice of same within ten (10) days.
52. Consistent with this Agreement, the parties agree to make a good faith effort to mitigate both Defendants’ obligations under this Agreement and any adverse impact on Plaintiff’s water system.
53. In the event of any dispute between Plaintiff and Defendants arising out of or relating to this Agreement, the parties agree to try in good faith to settle the dispute by negotiation and/or mediation.
54. If the dispute cannot be resolved to the parties' mutual satisfaction through negotiation and/or mediation within thirty (30) days, Plaintiff and/or Defendants' Representative may elect to seek arbitration, and the dispute shall be resolved through binding arbitration. It is the intent of the parties that the arbitration be structured in such a way as to minimize costs and delay. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "AAA Rules") with the following stipulations:
a. The arbitration hearing shall
be held before Hon. Ret. Judge Weinstein at JAMS, San Francisco, or if he is
not available or declines to serve, a single arbitrator if the parties agree
upon a single arbitrator. If the parties cannot agree upon a single arbitrator,
then each shall select an arbitrator, and those arbitrators shall select a
third arbitrator. If they are unable to agree upon a third arbitrator within
fifteen (15) days, the third arbitrator shall be selected as provided in the
AAA Rules.
b. Unless
otherwise ordered, each party's presentation at the arbitration hearing shall
be limited to 14 hours, and the heating shall be completed within ten (10)
business days.
c. The
arbitration decision shall be rendered not later than thirty (30) days after
the final day of the hearing and shall be judicially enforceable, nonappealable
and binding.
d.
Summaries of any expert testimony, along with copies of all documents to be
submitted as exhibits, shall be exchanged at least ten (10) business days
before arbitration under procedures set up by the arbitrators.
e. Except as otherwise specified
herein, there shall be no discovery or dispositive motion practice except as
may be permitted by the arbitrators, who may authorize only such discovery as
is shown to be necessary to ensure a fair hearing. No discovery or motions
permitted by the arbitrators shall in any way alter the time limits specified
herein.
f.
Arbitration costs, arbitrators' fees, and attorneys' fees and costs shall be
awarded to the prevailing party, if any, by the arbitrators.
g.The arbitration
shall occur in San Francisco, California.
55. In the event of arbitration arising out of, or related to, this Agreement, the prevailing party shall be entitled to recover its costs, expenses, and reasonable attorneys' fees, in addition to any other relief to which it may be entitled.
NOW
THEREFORE, in reliance on the recitals stated above and for consideration,
Plaintiff agrees as follows:
56. The foregoing recitals are true and correct and by this reference
incorporated herein.
57. Subject to the provisions of this Agreement, on behalf of itself, its assigns, Board representatives, and past, present or future agents, Plaintiff hereby releases Defendants, individually and collectively, and their respective predecessors, successors, assigns, present and potential indemnitees, insurers, subsidiaries, affiliates, attorneys, and past or present employees, directors, officers, agents, shareholders, and representatives from any and all DBCP claims, demands, Action, causes of action, obligations, liens, damages, and liabilities, of any nature whatsoever, whether or not known, suspected or claimed, present or future, relating to or arising out of any act, cause, matter or thing stated, claimed, or alleged, or that could have been stated, claimed, or alleged by Plaintiff in the Action. Plaintiff understands and acknowledges that it is releasing and waiving all past, present, continuing and future claims it has or may have against Defendants for the presence of DBCP, except as specifically set forth in this Agreement.
58. Plaintiff declares and warrants that no other person or entity has had nor now has any interest in the claims, demands, Action, causes of action, obligations, liens, damages, and liabilities released in Paragraph No. 57, above; and that it has not sold, assigned, transferred, conveyed, or otherwise disposed of any DBCP claim, demand, action, cause of action, obligation, lien, damage, or liability released in Paragraph No. 57, above.
59. Plaintiff declares that, prior to the execution of this Agreement, it has apprised itself of sufficient data, either through experts or other sources of its own selection, in order that it might intelligently exercise its judgment in deciding on the contents of this Agreement and in deciding whether to execute it. Plaintiff further declares that its decision to enter into this Agreement is not predicated on or influenced by any declarations or representations of Defendants, or any of them, or by Defendants' respective predecessors, successors, assigns, subsidiaries, affiliates, insurers or attorneys or past or present employees, officers, directors, agents, shareholders, or representatives. Plaintiff declares that this Agreement is executed voluntarily and with full knowledge of its significance.
60. The parties acknowledge that they have an understanding of the facts underlying the Action and have negotiated in good faith and that this Agreement represents a good faith settlement with regard to the interests of all parties to the Agreement.
61. Plaintiff authorizes and directs its counsel to execute appropriate Requests for Dismissal, with prejudice, of the entire Action as to all Defendants, and to deliver the executed Requests for Dismissal to Defendants' Representative. All parties authorize and direct their respective counsel to execute whatever documents are necessary to implement this Agreement.
62. This Agreement shall bind the parties and each successor and assign of each party.
63. This document embodies the entire terms and conditions of the Agreement between the parties, and supersedes any prior documents signed by the parties in the course of resolving the Action. All words, phrases, sentences, and paragraphs, including the recitals hereto, are the execution of this Agreement.
64. This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State of Hawaii.
65. Upon the occurrence of an uncontrollable circumstance, the party affected shall be excused from any failure or delay in performance under this Agreement. For purposes of this Agreement, an "uncontrollable circumstance" includes, but is not limited to, acts of God, fire, flood, civil unrest, earthquake, declaration of a public emergency, injunction, and labor disputes. However, the parties recognize that delays in Defendants' performance under the terms of this Agreement could uniquely subject Plaintiff to third parties' disputes. Therefore, in the event Defendants' performance of any option or obligation described in Paragraph 26 and its subparts is delayed due to force majeure circumstances, Plaintiff may proceed with the construction of wells, notwithstanding any right of Defendants to construct replacement wells and select alternative well sties. Defendants shall promptly reimburse Plaintiff for the cost of well construction incurred under these circumstances.
66. In the event any of the terms, conditions or covenants contained in this Agreement are held to be invalid, then any such invalidity shall not affect any other terms, conditions or covenants contained herein which shall remain in full force and effect.
67. Plaintiff warrants that this Agreement has been approved by Plaintiff's Board of Water Supply, and each of the signatories to this Agreement warrants that he or she is fully authorized to enter into the terms and conditions stated herein and to execute this Agreement.
68. This Agreement will be effective whether or not executed in multiple counterparts.
BOARD OF WATER SUPPLY
OF THE COUNTY OF MAUI
Signed by Robert Takitani
its Chairperson
8/31/99
Approved as to form:
MILLER, SHER & SAWYER
A Professional Corporation
Signed by Gary W. Zakian
Deputy Corporation Counsel
Aug. 31, 1999