COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 12-1448-BLS1 COMMONWEALTH OF MASSACHUSETTS, v. Plaintiff, HESS CORPORATION, f/k/a AMERADA HESS CORPORATION, itself and as successor-in-interest to THE MEADVILLE CORPORATION, MERIT OIL CORPORATION, and MERIT OIL OF MASSACHUSETTS, INC., Defendant. FINAL CONSENT JUDGMENT It appearing to the Court that Defendant Hess Corporation ("Hess") has consented to the entry of this Final Consent Judgment, and the Comi finding both subject matter and personal jurisdiction, IT IS HEREBY AGREED, ORDERED AND ADJUDGED THAT: I. PAYMENT 1. Within thirty (30) days after the entry of this Final Consent Judgment, Hess shall deliver, by hand delivery or certified mail return receipt requested, a cetiified check in the amount of$2,500,000 (Two Million Five Hundred Thousand Dollars), made payable to "The Commonwealth of Massachusetts" to Lynn Zhong, Administrative Assistant, Office ofthe Attorney General, Insurance & Financial Services Division, One Ashburton Place, Room 1813, Boston, Massachusetts 02108. In addition, within thitiy (30) days after the entry of this Final tjdh'g2- u(l\ r td-;)~ b" s-hs xs Lu~P. A~ t'\ \ 110:> fl,
hereto as Exhibit A, as executed by the Massachusetts Underground Storage Tank Petroleum Cleanup Fund Administrative Review Board (the "Fund"), Hess shall deliver one original, fullyexecuted Fund Settlement Agreement along with a second certified check in the amount of $1,900,000 (One Million Nine Hundred Thousand Dollars), made payable to "Commonwealth of Massachusetts, UST Program Expendable Trust" to the Massachusetts Depmiment of Revenue, UST Program, c/o Gordon Bullard, Executive Director, P.O. Box 9563, 100 Cambridge Street, Boston, MA 02114. II. WAIVER OF APPEAL AND OF FINDINGS OF FACT AND RULINGS OF LAW 1. The pmiies to this Final Consent Judgment waive all rights of appeal in this action and also waive the requirements of Rule 52 of the Massachusetts Rules of Civil Procedure as to this action. 2. This Consent Judgment resolves the Commonwealth's claims against Hess as set forth in the Complaint, filed in April2012. By agreeing to this Final Consent Judgment, Hess admits that it violated the disclosure requirement in 501 CMR 2.03(6)(d) as determined by this Court and, thus, violated Chapter 211, Section 13(2) of the Massachusetts General Laws. Hess does not admit any liability for any other claims asserted in the Complaint. 3. Nothing in this Final Consent Judgment shall relieve Hess of its obligation to comply with all applicable state and federal laws and regulations. 4. This Final Consent Judgment contains the complete agreement between the pariies. No promises, representations, or wananties other than those set forth in this agreement have been made by either party. This Final Consent Judgment supersedes all prior communications, discussions, or understandings, if any, of the parties, whether written or oral. This Final Consent 2
Judgment can be modified or supplemented only by a written memorandum signed by the parties and approved by the Comi. III. CONSEQUENCES OF NONCOMPLIANCE I. The Superior Court shall retain jurisdiction of this case for purposes of enforcing this Final Consent Judgment. Violations of this Final Consent Judgment by Hess are subject to civil or criminal contempt sanctions, or as otherwise provided by law. Dated: rj-ct-. ~ 3 '2015 By the Co.urt: Edward P. l.;:eibensperger AssoCiate Justice Sti~~t~~(;Cth,trt 3
Exhibit A- Fund Settlement Agreement This Fund Settlement Agreement is dated and executed as of October 19, 2015 and is made and entered into by and between the Massachusetts Underground Storage Tank Petroleum Cleanup Fund Administrative Review Board (the "Fund") and Hess Corporation and its subsidiaries ("Hess") (collectively, the "Pmiies"). WHEREAS, the Attomey General's Office commenced an investigation and then filed a Complaint in Suffolk Superior Court, Commomvealth of Massachusetts v. Hess Corporation, No. 12-1448-BLS 1 (the "Complaint"), regarding alleged violations by Hess of Massachusetts law, including Massachusetts General Law Chapter 12, Section SA et seq. and Chapter 21J, with regard to claims made to the Massachusetts Underground Storage Tank Petroleum Product Cleanup Fund program; WHEREAS, in January 2015, the Comi (Billings, J.) issued a Memorandum of Decision on the Parties' Cross-Motions for Summary Judgment granting in part and denying in part each party's motion; WHEREAS, the Court (Kaplan, J.) set the action for trial in January 2016 with respect to the amount of actual damages, if any, while reserving the detennination of civil penalties until after trial; WHEREAS, a dispute has arisen between Hess and the Fund as to, inter alia, whether the Fund is entitled to reimbursement of all or a potiion of its payments on past and future claims for remediation costs at the Hess Legacy Stations and Merit Stations (as defined in the Complaint); WHEREAS, Hess has paid fees for tank registration and delivery fees pursuant to Massachusetts General Law Chapter 21J; and
WHEREFORE, in consideration of the mutual covenants set forth herein, which are good and valuable consideration the receipt and sufficiency of which are hereby acknowledged by the Parties, and fully intending to be legally bound, the Parties agree as follows: 1. Payment. Hess agrees to pay One Million Nine Hundred Thousand Dollars ($1,900,000) to the Commonwealth of Massachusetts UST Program Expendable Trust in accordance with the Final Consent Judgment in the litigation in Suffolk Superior Court, No. 12-1448-BLSl. 2. Covenant Not to Sue. Except as provided in Paragraph 6, the Fund agrees not to commence any judicial action against Hess for any alleged violations of Massachusetts General Laws Chapter 211, 503 CMR 2.00 or any other Massachusetts civil law or regulation arising from or relating to any submission to the Fund, including without limitation, Applications of Eligibility and Applications for Reimbursement, by Hess before May 1, 2012 for the Hess Legacy Stations and the Merit Stations. 3. Release. For and in consideration of the receipt of the payment referenced in Paragraph 1, above, the recitals set forth above, the mutual promises, agreements, covenants, and provisions herein contained, and other good and valuable consideration, the sufficiency of which is hereby acknowledged by the signatures below, the Fund hereby RELEASES AND FOREVER DISCHARGES Hess, its subsidiaries, agents, servants, officers, directors, employees, successors in interest, 2
and legal representatives from any and all claims, rights, demands, liabilities, controversies, suits, damages, obligations, causes of action of whatever nature or character that arise out of or are in any way connected with or related to the Travelers/Royal Lawsuit, the Meadville Lawsuit, the London Insurers Lawsuit, and the Lloyd's Lawsuit (as defined in the Complaint) that the Fund has had, may now have or hereafter have up to and including the date of this Fund Settlement Agreement, including, but not limited to claims in tort, contract, waitanty or statute, at law, or in equity, for strict liability, negligence, gross negligence, negligence per se, civil statutory violations (including without limitation Massachusetts General Laws Chapter 21J), violations of any Massachusetts regulation, intentional tort, fraud, civil conspiracy, misrepresentation, penalties, fines, treble damages, investigation costs, debt, actual damages, any form of recovery at law or in equity, any and all damages known or unknown, foreseen or unforeseen, attorneys' fees, judgment and expenses of any type whatsoever. For purposes of this paragraph, a matter is not connected with or related to the Travelers/Royal Lawsuit, the Meadville Lawsuit, the London Insurers Lawsuit, and/or the Lloyd's Lawsuit if it merely involves a Hess Legacy Station or a Merit Station but does not otherwise relate to any of the claims made in the Complaint. Notwithstanding the foregoing, nothing in this Fund Settlement Agreement (if it applies and to the extent it applies at all) shall preclude any action by the Commonwealth to recover cleanup costs under Chapter 21 E of the Massachusetts General Laws and its regulations or to enforce any Massachusetts environmental law, including but not limited to, Chapter 21 E and its regulations; the Clean Waters Act (Chapter 21, Sections 26-53) and its regulations; the Wetlands 3
Protection Act (Chapter 131, Section 40) and its regulations; Chapter 111, Sections 142A-142M; Chapter 111, Section 160; and the regulations implementing Chapter 111, including without limitation 310 CMR 22.00. 4. Within 30 days of the receipt ofthe payment referenced in Paragraph 1, above, the Fund shall1ift its hold on Hess's claims. The Fund shall then finish processing Hess's claims in the normal course of business and without regard to any issues raised in the Complaint. 5. The Parties agree to bear all of their respective costs, fees, and expenses incurred with regard to the subject matter of this Settlement Agreement. 6. Nothing in this Settlement Agreement, including Paragraph 2, shall be construed to prevent the Fund from conducting an audit to the extent expressly authorized by law with respect to any Hess claim that was approved prior to or is approved after this Fund Settlement Agreement and seeking recoupment from Hess of amounts erroneously paid during the initial reimbursement claim processing due to math or technical errors in the original claim or the original reimbursement. 7. This Fund Settlement Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this agreement. The Parties have not relied on any representations, warranties, or inducements made by any Party concerning this Fund Settlement Agreement other than those expressly contained and memorialized 4
herein. No prior oral or written statement concerning the subject matter of this Fund Settlement Agreement that is not set forth herein will have any force or effect or may be used or relied upon to interpret this Fund Settlement Agreement. 8. This Fund Settlement Agreement shall be binding upon and inure to the benefit of the representatives, successors, and assigns of each Party hereto. 9. This Fund Settlement Agreement will be governed solely by the laws of the Commonwealth of Massachusetts, and will be enforceable by the Superior Court of the Commonwealth in Suffolk County and any other court of competent jurisdiction. The Parties agree and acknowledge that they relied solely upon their own knowledge and information and/or upon the advice of their attorneys as to the existence and extent of their respective claims, of their legal rights with respect to such claims, of the liability, if any, ofhess, and ofthe scope and effect of all terms ofthis Fund Settlement Agreement, that they freely and voluntarily desire to execute this Fund Settlement Agreement, and that they have neither been influenced by nor relied upon any representations, if any, made by or on behalf of Hess, the AGO, or the Fund that are not expressly contained herein. The Parties agree that they shall be bound by the terms of this Fund Settlement Agreement: (i) regardless ofwhether new facts come to light of which they separately or jointly are not currently aware; (ii) regardless of whether facts of which they separately or jointly are not currently aware come to their knowledge; (iii) regardless of whether facts they jointly or separately believe to be the case subsequently are revealed not to be the case; and (iv) regardless of what facts 5
were known or not known by the other party or were represented or not represented by the other party. 10. Nothing contained in this Fund Settlement Agreement will be deemed, construed or argued to constitute an admission or adjudication by Hess of any issue of fact or law, or of any wrongdoing or of any liability in connection with any matter. Nor may this Fund Settlement Agreement or any negotiations, transactions, or proceedings connected in any way with this Fund Settlement Agreement be offered, received, or admitted in evidence in any proceeding to prove any liability, any wrongdoing, or an admission on the part of any Party hereto. However, nothing herein prevents this Fund Settlement Agreement from being used, offered, or received in evidence in any proceeding to enforce any or all of the terms of this Fund Settlement Agreement. 11. The persons executing this Fund Settlement Agreement represent and warrant that they have the full legal power, capacity, and authority to bind the parties for whom they are acting, and that this Fund Settlement Agreement constitutes a legal, binding obligation of each party hereto, enforceable in accordance with its terms. Any attorney signing represents and wattants that he/she has obtained the authorization and direction of his/her clients to agree to all terms and provisions of this Fund Settlement Agreement, and that his/her signature is affixed below with the full knowledge and understanding of his/her clients. Further, each party represents and warrants by its execution hereof that it has the right, power, legal capacity and authority to enter into and perfonn all of its obligations arising under this Fund 6
Settlement Agreement and has conferred (or been offered the opportunity to confer) with legal counsel of its choosing as to the significance and legal effect of this Fund Settlement Agreement The Pruiies :fmiher acknowledge that they have, individually or tlu:ough their respective counsel, pruiicipated in the preparation of this Fund Settlement Agreement, and it is understood that no provision will be construed against any pruiy by reason of either party having drafted or prepared this Fund Settlement Agreement. 12. This Fund Settlement Agreement may be executed in counterparts, each of which delivered by one pruiy to the other party by fax or electronic means will be deemed originals. All counterparts so executed shall constitute one agreement binding on all of the Parties, notwithstanding that all of the Parties are not signatories to the same counterpart. 13. No change or modification of this Fund Settlement Agreement shall be valid unless same is in writing and signed by all Parties to the agreement. Any and all oral agreements shall be void and of no effect unless reduced to a writing and signed by the Parties hereto. Amendments to this Fund Settlement Agreement may be signed in counterparts and delivered by one party to the other party electronically, by mail, or in person. 7
14. The waiver of any breach of any term or condition of this Fund Settlement Agreement does not waive any other breach of that term or condition or the enforcement of any other tenn or condition. 15. If any part of tlus Fund Settlement Agreement is held to be illegal, void, or unenforceable for any reason, such holding shall not affect the validity and enforcement of any other part of this Fund Settlement Agreement. IN WITNESS THEREOF, the undersigned subscribe their names: HESS CORPORATION By: David Castro Chief Litigation Counsel MASSACHUSETTS UNDERGROUND STORAGE TANK PETROLEUM CLEANUP FUND ADMINISTRATIVE REVIEW BOARD By=----------------~----- Mark Nunnelly, Commissioner Massachusetts Dept. of Revenue Donald Twomey, Chair Massachusetts Underground Storage Tank Petroleum Cleanup Fund Administrative Review Board 8