BENJAMIN B. WAGNER United States Attorney KELLI L. TAYLOR RICHARD ELIAS Assistant United States Attorneys 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 Attorneys for the United States
SETTLEMENT AGREEMENT AND STIPULATION; MUTUAL RELEASES; DISMISSAL; AND ORDER AND RELATED CROSS-ACTIONS.
This Settlement Agreement is entered into by and between the United States; Sierra Pacific Industries ("Sierra Pacific"); Eunice Howell, individually and dba Howell's Forest Harvesting Company ("Howell's"); W.M. Beaty & Associates, Inc. ("Beaty") and the following parties (hereinafter collectively "the Landowners"): Ann McKeever Hatch, as Trustee of the Hatch 1987 Revocable Trust; Richard L. Greene, as Trustee of the Hatch Irrevocable Trust; Brooks Walker, Jr., as Trustee of the Brooks Walker, Jr. Revocable Trust, and the Della Walker Van Loben Sels Trust for the Issue of Brooks Walker, Jr.; Brooks Walker, III, Individually and as Trustee of the Clayton Brooks Danielsen Trust, the Myles Walker Danielsen Trust, the Margaret Charlotte Burlock Trust, and the Benjamin Walker Burlock Trust; Leslie Walker, Individually, and as Trustee of the Brooks Thomas Walker Trust, the Susie Kate Walker Trust, and the Della Grace Walker Trust; Wellington Smith Henderson, Jr., as Trustee of the Henderson Revocable Trust; Elena D. Henderson, Individually; Mark W. Henderson, as Trustee of the Mark W. Henderson Revocable Trust; John C. Walker, Individually, and as Trustee of the Della Walker Van Loben Sels Trust for the Issue of John C. Walker; James A. Henderson, Individually; Charles C. Henderson, as Trustee of the Charles C. and Kirsten Henderson Revocable Trust; Joan H. Henderson, Individually; Jennifer Walker, Individually, and as Trustee of the Emma Walker Silverman Trust, and the Max Walker Silverman Trust; Kirby Walker, Individually; and Lindsey Walker, a.k.a. Lindsey Walker-Silverman, Individually, and as Trustee of the Reilly Hudson Keenan Trust, and the Madison Flanders Keenan Trust. Beaty, Sierra Pacific, Howell's and the Landowners are herein collectively referred to as "Defendants" and, together with the United States, are collectively "the Parties." In consideration of the mutual promises, covenants, conditions, terms, and obligations set forth in this Agreement, and except as set forth herein, the Parties hereby agree to settle and compromise each and every claim of any kind, known or unknown, arising directly or indirectly from the acts and omissions that gave rise to the above-captioned actions, under the terms and conditions set forth below.
1. Defendants agree to pay their allocated portion of the collective sum of $55 million (the "Settlement Amount") to the United States as follows:
a. Sierra Pacific shall pay or cause to be paid $17 million within sixty days from the date of filing of this Settlement Agreement. Sierra Pacific shall pay or cause to be paid an additional $30 million of the Settlement Amount in twice-yearly payments of $3 million each, on January 1 and July 1 every year starting January 1, 2013, until full payment is received.
b. Howell's shall pay or cause to be paid $1 million within sixty days from the date of filing of this Settlement Agreement.
c. Beaty and the Landowners shall collectively pay or cause to be paid $7 million within sixty days from the date of this Settlement Agreement.
Upon payment of Beaty, Landowners and Howell's share of the Settlement Amount, Beaty, Landowners and Howell's will have satisfied all of their obligations under this Settlement Agreement and shall have no further obligation to provide additional consideration of any kind to satisfy the conditions herein. Upon payment of Sierra Pacific's share of the settlement amount, and the conveyance of fee simple title to 22,500 acres of Sierra Pacific land as more specifically set forth below, and dismissal of Case No. 2:11-cv-1250, Sierra Pacific will have satisfied all of its obligations under this Settlement Agreement and shall have no further obligation to provide additional consideration of any kind to satisfy the conditions herein.
All payments will be made by electronic funds transfer pursuant to written instructions provided by the United States Attorney's Office for the Eastern District of California. If Sierra Pacific makes timely payments as set out in Paragraph 1(a) above, no interest shall accrue on amounts owed or to be paid under this Settlement Agreement.
2. In addition to its payment obligation in Paragraph 1, Sierra Pacific agrees to convey fee simple title to 22,500 acres of land (the "Settlement Land") to the United States, free and clear of all liens and encumbrances except those acceptable to the United States under the Attorney General's title standards, to be selected by the Regional Forester in the manner set forth in Paragraphs 3-7 below. Sierra Pacific will transfer only existing legal parcels.
3. Within ten days of the filing of this Agreement, Sierra Pacific will identify 200,000 acres of undeveloped wildland owned by Sierra Pacific in California, from which the Regional Forester may select any part or parts as potential Settlement Land. If the Regional Forester, in his sole discretion, does not select 22,500 acres of potential Settlement Land from the initial 200,000 acres offered, within ten days of notice of that fact, Sierra Pacific will identify another 100,000 acres of undeveloped wildland for his consideration. This process of identifying additional 100,000 acre blocks will continue until 22,500 acres of potential Settlement Land has been identified.
4. Sierra Pacific will provide any information or reports to the Regional Forester within 30 days of request for that information. Upon completion of whatever inquiry he considers appropriate, the Regional Forester will give written notice of acceptance or rejection of potential Settlement Land. The Regional Forester, in his sole discretion, may accept or reject all or any part of any potential Settlement Land. Once a parcel is rejected by the Forest Service, it is rejected for all time, unless Sierra Pacific at its own discretion renews the offer.
5. Within one hundred twenty days after receipt of written notice of acceptance of any Settlement Land, Sierra Pacific will convey fee simple title to that land to the United States, free and clear of all liens and encumbrances except those acceptable to the United States under the Attorney General's title standards. Any costs required to obtain and convey clear title to such properties, including but not limited to closing costs, will be borne by Sierra Pacific. The Administrator of General Services, or his designee, shall have charge of the accepted property on behalf of the United States, and shall then assign custody and accountability of the property to the U.S. Department of Agriculture to be administered as part of the National Forest System.
6. In the event that the Regional Forester deems any potential Settlement Land unacceptable for conveyance to the United States, he will give written notice of rejection to Sierra Pacific, and may designate any combination of acres of undeveloped wildland owned by Sierra Pacific, equal in number, for conveyance to the United States under the same terms and conditions set forth in Paragraph 3 above. This selection process shall continue in the same manner until the Regional Forester has accepted, and Sierra Pacific has conveyed, all 22,500 acres of land pursuant to this Agreement.
7. Notwithstanding any contrary provision set forth above, the Regional Forester may, in his sole discretion, accept land subject to mineral rights of third parties in partial or full satisfaction of Sierra Pacific's obligations under this Agreement. Sierra Pacific shall disclose the existence of such rights in any property when offering potential Settlement Land for the Regional Forester's consideration.
8. Within five days of filing of this Agreement, the Forest Service, U.S. Department of Agriculture will withdraw its prior Touhy decisions concerning Diane Welton and Karen Juska, and will issue new decisions stating that these two witnesses will be made available to testify in one trial of Defendants' choosing in the state court litigation arising from the Moonlight Fire, but not allowing any further depositions of these witnesses. Defendants agree not to challenge these new Touhy decisions. Defendants further agree that within ten days after receiving the new Touhy decisions for Welton and Juska, they will prepare and file a stipulation to dismiss Case No. 2:11-cv-1250 with prejudice. The terms of ...