HomeMy WebLinkAboutCity of Garden Grove - 2005-03-2101
CITY OF HUNTINGTON BEACH
Inter -Department Communication C,
TO: JOAN FLYNN, City Clerk
FROM: JENNIFER McGRATH, City Attorney
DATE: July 25, 2006
SUBJECT: City
of Huntington Beach v. HBPOA
At the March 21, 2005 Closed Session, the City Council authorized the City Administrator to
approve settlements up to $25,000 with users of the Gun Range in the above -mentioned case.
Attached please find original, fully executed Settlement Agreement between the City of
Huntington Beach and the City of Garden Grove in. the Gun Range litigation, with the request..
you keep this Agreement on file in your office.
.
I K H
FVER McGRAT
City Attorney
Attachments
1002
1 . JENNIFER MCGRATH, City Attorney (Bar No. CA 179917)
SCOTT F. FIELD; Assistant - City -Attorney (Bar No'. CA 105 09)
2 Box 190, 2000 Main Street
Huntington Beach -, California 92648'
3 Telephone: 7.14 5.36-5555,
Facsim714 374-1590 -
LL 4 E-mail. 'sfield@surfcty-hb.org
5 Hal D. Goldflam, Esq.
6 FRANDZEL ROBINS BLOOM & CSATO, L.C.
6500 Wilshire Boulevard, 17th Floor
Los Angeles CA 90048-4920 ..
7 Phone: 323-�52-1000
Facsimile: 323-651-2577
8 Email: hgoldflam@frandzel=.com
'9 Attorneyy s for Plaintiff
10 CITY OF:HUNTIN TON BEACH
.. .12
UNITED STATES DISTRICT COURT
-.. CENTRAL DISTRICT OF CALIFORNIA
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CITY, OF HUNTINGTON BEACH, a CASE NO. SACV 0 1- 1125 JVS (ANx)
1.5 municipal corporation of the State of
California and charter city dulycreated .
16 and existing under the laws of he State SETTLEMENT AGREEMENT BY
of California AND BETWEEN PLAINTIFF CITY
17 OF HUNTINGTON BEACH AND
Plaintiff, DEFENDANT THE CITY OF .
18 GARDEN GROVE
vs.
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[PROPOSED] ORDER AND
�20 HUNTINGTON BEACH POLICE JUDGMENT
OFFICERS ASSOCIATION, a
21 California mutual benefit corporation;
et al.,
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23 Defendants.
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25 And Related Claims and Third Party
Complaints.
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PRINTED ON
^ ^ ^^ ^ ^ ^ SETTLEMENT AGREEMENT
field/plead/gun range/settlement agreement - '
THIS SETTLEMENT AGREEMENT AND RELEASE is entered, into, by and
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between the Plaintiff, City of Huntington Beach ("City") on the one hand, and
=~ Defendant, the City. of_Gard_;en- Grove -(the-" Settling Defendant"). The City. and
Settling Defendant shall be referred to collectively as the, "Settling Parties," and
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sometimes individually as a "Settling Party." No other person or entity is a party to
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this Agreement; ;
WHEREAS, Plaintiff, City of Huntington Beach (the "City") on November 25,
2001 filed that, certain lawsuit entitled City of Huntington Beach vs..Huntington
Beach'Police Officers Association, United States District. Court, Case No. SACV 01
10 11.25 JVS (Anx). (the "Action in which it seeks contribution and other relief arising
11 under the Resource Conservation and Recovery Act of 1,976 ("RCRA"), 42.U.S.C.
12 6901 et seq.,the Comprehensive Environmental Response; Corn` ensation and
13 Liability,Act of 1980'("CERCLA"), 42 U.S.C. § 9601 et seq.,, the California
14 Hazardous Substance Account Act (".HSAA"), Calif. Health-& Safety Code
IS
§ 25300 et se as: well as breach of contract nuisance,. trespass, waste negligence,
q�� � P, .. ,
16 contribution, and indemnity;
17 WHEREAS, the Action concerns a parcel -of land located at 18211 Gothard
18 Street -in Huntington Beach,. California (the "Property"). The City.alleges that the
19 Property -was deeded by Defendant County of Orange to the City in 1963, and that.,
20 from 1968 to 1997, the Property was leased from.the .City by. Defendant Huntington
21- Beach Police Officer's Association (the "POA") for the purpose of _operating and
22 maintaining a gun range on the site (the "Gun Range"), which is generally depicted in
23 the map attached as Exhibit A
WHEREAS, the POA has. answered and asserted -counter-claimsagainst the
25 City;
26 WHEREAS, in July 2004,.the POA applied to the Court and was granted leave
27 to join as Third Party Defendants various entities that previously used the. Gun Range
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for firearms training, including the Settling,Defendant. Then on December.2, 2004,,
2 SETTLEMENT AGREEMENT
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`the City was granted leave to directly' ue these same entities'"and additional persons
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as defendants. On December 14, 2004, the City filed its Third Amended Complaint
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("TAC") adding as Defendants: United States of America; County,of Orange; City of
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Bell; City of Bueria Park -"City of Costa Mesa;- City of Cypress; City of Fountain
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Valley; City of Gardena; City of Garden Grove; City of Huntington Parks City of La .
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Palma; City of Manhattan 'Beach; City of Orange; City of Irvine; City of Santa Ana;
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City of Westminster; Santa Ana Unified School District; Dean's Security
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Professionals; Competitive Edge; Silverado -Sportsman Club; Singleton -International;
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The Centurion. Group; Yavapai Firearms Academy, Ltd.; and Westec. Security, Inc.
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(collectively, "'Shooters");,
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WHEREAS, -the Shooters have generally denied the substantive claims and .
_ allegations it the TAC and in the related counter -claims; cross -claims, third party
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claims, and further denied any use or significant use. of the Property, and contended
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that. any, use was an invited use;
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WHEREAS, City alleges (reference to these allegations in this Agreement shall.
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not 'be construed as an adoption. or admission by the :Settling'Defendant) as follows:
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1. During the POA's ownership and operation of the Gun Range, the POA ,
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allowed approximately 12,000 peace officers from no less than seventy
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(70) law enforcement agencies. to discharge an estimated one million
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rounds of lead ammunition per^year at the Property. As part ofits range
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maintenance program, the POA attempted to mine and recover the
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,numerous spent ammunition rounds, slugs, and/or shell. casings by
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sifting the -soil on the site and recovering spent bullets for recycling', and
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1 that this screening procedure recovered .38 caliber bullets, and perhaps
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smaller 9-min bullets. However, smaller fragments, shards, particles and
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dust that resulted.from bullets exploding at the range on impact were too
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_ small, to be recovered by the POA's mining and recovery procedures.
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2. During the POA's tenancy and the POA's and Shooters' use of the
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Property, hazardous substances and materials were released on the'
3 SETTLEMENT AGREEMENT.
1 Property, causing contamination of the soil and groundwater. Further, as .
2 a proximate result of the POA's and Shooters' activities on the Property,
3 the City has incurred and will continue to _incur response costs regarding
._... � ' 4 ' ; "__ - �. • . the Property.
5 3.' The .City has incurred costs and damages in connection with the
6 investigation and cleanup of various hazardous substances.. (as defined in
7 Section III below, hereafter "Hazardous Substances") at the Property.
8 The City will incur additional costs and damages in the future on
9 account of the Hazardous Substances at the Property. The City is
10 entitled to recover those costs and damages pursuant to the combined
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operation of CERCLA, HSAA and various common law theories. The
City is entitled to injunctive relief to compel Defendants to remediatethe,
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Property pursuant to- RCRA and various common law theories.
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4. Since the POA vacated the. Property in January 1997, the City has been
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engaged in* an "ongoing effort to rehabilitate the Property so that the
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public can safely use it for park and recreational uses. Specifically, on
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or about December 8, .1988, the City received a lead contamination
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assessment from Americlean Environmental Services, Inc., which'.
18 describes pervasive lead contamination throughout the Property. As a
19' result of the contamination, the City was legally compelled to take the
20 necessary.steps to remediate it andreportthe contamination to the
21 Orange County Health Care Agency ("OCHCA").
22 5. In December 2000. the City began drafting an environmental impact
23 ' report ("EIR") in order to determine the scope of contamination and
24 evaluate remedial alternatives and future reuse of the Property. In order
25 to investigate the scope of contamination and evaluate remedial
26 alternatives, the City conducted several- environmental assessments of,
27, the Property, which confirm that the soil at the Property is heavily
28 contaminated with lead. The lead contamination is classified as a
4 SETTLEMENT AGREEMENT
1 "hazardous waste" under RCRA and as "hazardous substances" under
2 CERLCA and HSAA.
3' 6. As, a result of,the contamination, the environmental assessment, cleanup,
4. and remediation of -the Property are being directed, and�overseen by
5 OCHCA..The City has obtained from OCHCA an approved Remedial
6 Action Plan ("RAP") °
7. , The City conducted a Bench Scale Feasibility Study -to further test and
8.. investigate the Property to determine more accurately the remediation
9 cost for the Property. The study was completed in July 2003, and based
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on the -most recent estimates, the cost to remediate the Property is
11 $2,100,000. This cost is based upon excavating approximately 19,000
tons of soil, and achieving a minimum cleanup standard of 750 parts per
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million ("ppm"). If the'California Department of Toxic .Substances
Control ("DTSC") and/or Santa Ana Regional Water Quality Control
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Board impose a more restrictive cleanup based upon a health risk
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assessment or other criteria, the volume of soil to be excavated could
increase substantially, and the cleanup cost could significantly and`
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materially increase above and beyond the current estimate.
18 8. In .addition to the $2,100,000 estimate in the Feasibility Study, the cost
19 to date for regulatory approvals, including preparation of a draft EIR and
20 RAP is $175,000." At the recommendation of DTSC, the City will
21 prepare a risk assessment analysis, which may cause revision of the
22 RAP. The cost of remaining regulatory approvals is,estimated to be'.
23 $75,000. Taking into .account contingencies, the estimated cost of
24 remediation is $3,000,000;
25 WHEREAS, the Settling Defendant maintains -that it, was not liable for any
26 claims for relief asserted, in the TAC or.the POA's First Amended. Cross -Claims and
27, - Third -Party Claims (the "FAC") and alleges (reference to these allegations in this . .
5 SETTLEMENT AGREEMENT
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Agreement shall not be construed as adoption or admission of these allegations by the
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City) as follows:
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1. The City owned and permitted the use of its Property as a Gun Range,
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and failed'to properly inspect and regulate its use to ensure the permitted
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activity and compliedwith all .environmental laws:
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2 The City's police department was the primary user of the Gun Range
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throughout the period it was in operation and, thereby, was the primary
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contributor to the alleged contamination.
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3. Knowing that the Property would be used as a shooting range, the .City
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failed to properly regulate and restrict the use of non -lead free bullets.
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4. _,. The City. invited and encouraged- other city police departments to use the
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Gun Range as part of joint training sessions conducted for the benefit of .
City's police department, and thereby represented all such activities
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were lawfully undertaken:
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5..1 With the City's knowledge and approval, the bullets used at the`Gun
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Range were supplied by and purchased from the POA, City's tenant.
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6. The City financially benefited from operating peace officer firearms
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courses- at the Property where it directed course participants to use the
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Gun Range and the bullets supplied by the POA, and thereby represented
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all such activities were lawfully undertaken.
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7. The° City failed to properly maintain the Property to prevent the alleged
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.. disposal release or threatened release of hazardous waste or hazardous
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substances.
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8. The City has unreasonably delayed in remedating the Property, and
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- negligently inspected and tested the Property, so as to cause the spread
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and migration *of the alleged contamination.
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9., The Settling Defendant's use of the Property, if any, .was insignificant:
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10. The sole cause of the alleged contamination of the Property was the - .
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City's and the POA's actions and inactions.
SETTLEMENT AGREEMENT
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11. The Settling Defendant is neither owner, operator, nor arranger, as those ,
terms are defined under the.environmental Taws, including RCRA;
CERCLA; and HSAA, and its activities on the Property,. if any, 'do not:
-constitute thedisposal4or-release or threatened release of hazardous
Waste or'Hazardous Substances (as the latter term is defined in Section
III below and RCRA, CERCLA and HSAA);
WHEREAS, prior to entering into this Settlement Agreement, there have been
various initial disclosures, supplemental initial disclosures, .and responses to public
records requests;
WHEREAS, the settlement, terms as reflected in this. Settlement Agreement
have been.. reached. by the City of Huntington Beach and the Settling Defendant;
WHEREAS, without admitting any issues of fact or law, the Settling Parties
agree that.the ettlement.memorialized in this Settlement Agreement reflects the.
Settling Parties' shared desire to avoid the expense and risk inherent in continued
litigation ,of the Action, and is a good faith effort to advance the public interest by
ending the litigation -related expenditure of government funds while providing
significant funds toward the cleanup of the Property;
WHEREAS',the Settling Parties anticipate that the Court.(as defined below in
Section I) will review and approve this Settlement Agreement and enter the Order
.and Judgment. attached as Exhibit B, or a substantially similar. Order and Judgment;
SNOW, THEREFORE; inconsideration of the -foregoing recitals and in _
exchange for the promises 'contained- herein and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the.
Settling Parties agree as follows:
I. JURISDICTION
The Settling. Parties agree that the United States. District Court for the Central
District of California (Hon. James V.. Seln.a presiding) (the "Court") has jurisdiction
over theSettling Parties and jurisdiction over the subject matter of the .Action ,
pursuant to CERCLA Section 113(0) (42 U.S..C...§ 9613(b)), and 28 U.S.C. §§ 1331
7, SETTLEMENT AGREEMENT
1 and 1367(a). For purposes of the Court's review, approval and enforcement of this
:2 Settlement Agreement, the Settling Parties waive any and all objections, and defenses
3 they: may have to the jurisdiction of the Court, to venue in this District, or to service
4 of,process.
5 II. PARTIES BOUND
6- Thin Settlement Agreement applies to, is binding upon, and inures to the -
.:7 benefit of each of the Settling Parties, and each of their agents, officers, directors,
8. ..elected officials, appointed officials, administrators, representatives; predecessors;
9 successors, and assigns. Each Settling Party has indicated its acceptance and
10 approval of the terms and conditions hereof by having a duly authorized
11 , representative execute this document below.'
III: HAZARDOUS SUBSTANCES
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As used in this Settlement Agreement, the term_"Hazardous Substances"
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includes hazardous substances and hazardous .waste as those terms are used in the
15 TAC and FAC and shall include, without limitation all substances defined as
hazardous substances in CERCLA section 101(14), 42 U.S.C. § 9601(14) and in'
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Section 25316 of the California Health & Safety Code, and all waste defined as
hazardous waste in RCRA Section 103 (5) and (27), 42 U.S.C: § 6903(5) and (27), or
_ 18 in other statutory or decisional environmental law, as heretofore or hereafter.
19. amended:
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IV. SETTLEMENT PAYMENT
24A. Amounts.. Subject to and consistent. with the terms and provisions of
22 this Agreement, the Settling Defendant shall -pay Three Thousand Dollars ($3,000.00)
23 to :the: City of Huntington Beach.
24 B. Payment. The Settling Defendant shall deliver the settlement payment
25 to counsel for the Plaintiff at counsel's address listed in Section XI Subsection .G
26 (Notice), within 1) fiifty (50) business days after both of the following have occurred:
27 Plaintiff and the Settling Defendant have signed this Agreement and Plaintiffs initial
28 motion orapplication for approval of this Agreement and entry of the Order is'heard
$ SETTLEMENT AGREEMENT
1 or 2) ten (10) business days after this Agreement is so executed and a dismissal with
2 prejudice has been entered in favor of the Settling Defendant, whether by Court Order
3 or Plaintiff s voluntary dismissal with prejudice, whichever occurs first. Payment
4 shall be in the form of a check or checks from the Settling Defendant, made payable
5 to "City of Huntington Beach."
6 V. DISMISSAL AND RELEASE
A. Disiriissal of the Entire Action. The Settling Parties hereby agree that..
8 the City shall use its best efforts to cause the dismissal with prejudice of the entire
9 Action against the Settling Defendant, including without limitation, seeking the
10 Court approval of the Agreement and dismissal with prejudice (in the form of the
contemplated Order) of any and all claims under federal, state and other law asserted
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against each other in the Action, or which could have been asserted in the Action
based on the facts alleged, including without limitation, claims for (1) the recovery. of
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costs incurred including.any interest thereon, and/or costs to be incurred in
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connection with preparing or implementing measures to clean up or abate the
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Hazardous Substances at the Property, (2) damages arising* from or related to the
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Hazardous Substances at the Property, (3) statutory and equitable contribution and
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indemnification ansmg from or related to the.Hazardous Substances atthe Property,
18 and (4) attorneys' fees and costs.and expert costs and fees. This dismissal shall
19 include, without limitation, all claims asserted, or which could have been asserted, by
20 the Settling'Defendant against each other party in the Action for which there is a
21 comparable dismissal of that party's claims against the Settling Defendant.
.22. " B. Dismissal of the TAC. The City agrees that in the event it is
23 unsuccessful in obtaining Court approval of the Settlement Agreement through entry
24 of the Order or, if submitted, modified -Order, the City shall file a voluntary dismissal
25. with prejudice of the TAC in favor of the Settling Defendant; within fifteen (15)
26 business days of the denial of the Order or, if submitted, within five (5) business days
27 of the denial of the modified Order, and thereafter shall defend and indemnify the
28 dismissed Settling Defendant as provided in SectionVII:
9 SETTLEMENT AGREEMENT
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C. Release. Save and except for claims arising from alleged breaches of
this Section and Sections X, XIA and XIB of this Settlement Agreement, or' fraud :m.
the declaration referred to at Section VIA, -and except for claims expressly,or.
preserved-inth s_Settlen ent Agreement; the Settling Parties hereby -release each other.
(and each of their agents, officers, directors, elected officials; appointed officials, -
administrators, representatives, predecessors, successors and assigns)'from-any and
all claims,., demands, actions, and causes of action arising from or relating to
Hazardous Substances at, on, under, or emanating from the Property whether such
claim,. costs, demands, damages, actions, attorneys' fees, causes of action and/or
:rights arise from, or are directly or indirectly related to, connected with, or caused by
the incidents -and alleged contamination which gives rise to the Action and any .
alleged Hazardous Substances at, on; under, or emanating, from the Property whether
such claims; demands; actions, and causes of action.are asserted and/or could have
"been, asserted in the ,Action,, are presently known or unknown, or are presently
suspected or unsuspected. Nothing in this provision is intended to change or affect
existing law concerning claims. or actions for fraud against or involving,apublic .
entity or a public employee and shall not be construed as such.
This release of claims, includes, without limitation, a release. of claims by the
Settling Defendant against each other party to the Action for which there is a,
comparable -release of that party's'claims against. the Settling Defendant. "
D. _ No Release of Non -Settling Defendants by the City... It is expressly
agreed that the City's release provided herein to the Settling Defendant does not and
shall not extend to or benefit any person or entity that is not -'a signatory to this.
.Settlement Agreement. All claims against non -signatories, whether asserted in the.
Action or not; are expressly preserved.
Cityexpressly reserves its rights'to bring or continue any action against any
-person or entity that is not a signatory to this Settlement Agreement to recover costs,
damages, and attorneys' fees incurred by the City in connection with the Property or
the Action.
10 SETTLEMENT AGREEMENT
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E. ' Assignment to the City of Settling Defendant's Claims Against Non-
Settling Parties. It is. expressly agreed that the Settling Defendant's release provided
at_Section V.C. as to each other party to`the Action for which there is a comparable-
release oftthat party's claims against the Settling Defendant,'does not and shall.not:
extend to or benefit any other person or entity. All Settling Defendant's claims
" against any non -settling person or entity, whethera.party in the Action, or otherwise,
and whetherasserted in the Action or not, are expressly preserved. In consideration
of the City's release of its -.claims against Settling Defendant, the Settling Defendant
transfers and assigns to the City all of the Settling Defendant's right, title and interest '
in and to any cause of action it may have against. any non -settling person or entity,
including but not .limited to, the POA, to recover costs, damages, and attorneys' fees
incurred by the Settling Defendant in connection with they Property or the Gun Range.
The City may bring such claims against any non -settling person or entity, including
but not limited'to, the'POA, as both a cross -complaint and. an., affirmative defense in
-connection with any action in which the City is defending and indemnifying the
Settling Defendant pursuant to..Section VII, or the City may bring such claim in a
separate action or proceeding.
VI. ..COURT APPROVAL AND PROTECTION AGAINST CLAIMS
A. Good Faith Compromise: Based upon the previously made
disclosure of the Settling Defendant, including any Declarations provided by
employees of the Settling Defendant who reviewed documents most readily available
concerning shooting ranges used by its police departments for firearms training
between 1971 and '1997, the Settling Parties acknowledge and agree that the
payments and other undertakings pursuant to this Agreement represent a good faith -
compromise of disputed claims and that the compromise (1) represents a fair,'
reasonable, and equitable resolution of, their -respective claims arising out of the
release of Hazardous Substances at the Property and (2) also benefits the public
interest by ending the litigation -related expenditure of government funds while
providing funds to" support the cleanup of the Property.
11 SETTLEMENT AGREEMENT
1 With regard to any claims for costs, damages, or other relief asserted, or which
2 could have been'asserted, against the Settling Defendant by any person- or entity that
3 is not a signatory to this Settlement Agreement on account of the release(s) of
4 "Hazardous Substances on; under, _or.afthe Property; the Settling'Parties agree that
5 upon approvatt-of this Settlement Agreement by the Court, the Settling Defendant is
6' entitled to the full benefit of any and all applicable provisions of federal and state
7 law,-, 'whether statutory, common law, decisional, or otherwise, including but not
8 limited to California Code of Civil Procedure Sections 87T and 877.6 and CERCLA
g Section-113(f), 42 U.S.C. § 9613(f)(2), extinguishing or limiting Settling Defendant's
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alleged liability to persons or entities that are not signatories to this Settlement
Agreement.
The Settling Parties further agree that claims for relief arising from the' alleged
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disposal, release or threatened release of Hazardous Substances on, under, or at the
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Property, and the claims made in the Action are -matters addressed in this Settlement'
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Agreement. The Settling. Parties acknowledge and agree that the dismissal of claims
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as described in. Section V and. elsewhere in this Settlement Agreement, and the .
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protection from contribution and indemnity claims under all applicable state and
federal laws and authorities, including without limitation contribution_ and indemnity -
18 claims, are integral and non -divisible -aspects of this Settlement Agreement and as
19 such are necessary and material terms in the Order: Hence,. the City is.required to.
20 seek entry by the Court of the Order approving this Settlement Agreement
21 substantially in the form set forth in Exhibit B as a condition precedent to the
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„ obligations of the Settling Defendant under Section "IV .of this Settlement Agreement.
23 Accordingly, as promptly as reasonably practicable after this Settlement .
24 Agreement has been executed, the City shall undertake, and the Settling Defendant
25 through .its respective counsel shall join in, a mutually acceptable joint motion or
26 other appropriate legal proceeding(s) as may be necessary or appropriate to secure the,
27 Court's approval of the Settlement Agreement, the contribution protection
28 contemplated herein, and the dismissal of claims contemplated herein.
12 SETTLEMENT AGREEMENT
1 B. Revised Application If Court Denies Motion. If for any
2 reason._.
the Court declines to approve the terms of this Settlement Agreement through
" 3 entry, of the Order, the. City _shall seek direction and clarification from *the Court
_ :4 concerning those aspectsof the motion;.applicaton, Settlement Agreement, -and/or
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Order it finds unacceptable. The Settling Parties then shall meet and confer,
6 telephonically or in person within f fteen (15) business days following such denial; to
discuss the items found unacceptable by the Court and -attempt in good faith to agree
8 upon amendments. to the Settlement Agreement, the motion or application to approve-_
9 the Settlement Agreement, and/or the Order so as to make them acceptable to the
l 0 Court. Promptly thereafter,. if agreement is reached and as provided herein, the City,
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shall apply, and the Settling Defendant shall join in the application, for approval of
the modified Settlement Agreement and/or modified Order from the Court.
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Nothing in this Settlement Agreement shall require the Settling Parties to
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modify or submit a modified Settlement Agreement and/or Order if, after negotiating
in good faith, they are unable to agree on mutually acceptable modifications.
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Nothing in this Settlement Agreement shall be read, interpreted or construed as
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requiring the Settling Party to modify the settlement*amount, the City's commitment
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to obtain an order_of dismissal or voluntarily dismiss the action with prejudice, and
18 the City's duty to defend and indemnify the Settling Defendant.once adismissal is .
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entered. IftheSettling Parties are unable to agree to any modifications within said
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fifteen (15). business day period, the City shall file a voluntary dismissal with
21 prejudice of the TAC in favor of the Settling Defendant.
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Ifthe Settling Parties agree to�modify either -the motion, or application or .
21 Settlement Agreement or Order, the City shall reapply for approval of the Settlement
24 Agreement and/or Order, as modified, from the Court within fifteen (15) business
25 days after the Settling Parties agree to the modifications.. If the Court declines to
26 approve the motion or application or Settlement Agreement and/or Order, as
27 modified, the City shall file a voluntary dismissal with prejudice in favor_of the
28-. Settling Defendant. within five (5) business days after the Court so declines.
13 SETTLEMENT AGREEMENT
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If the modified Order and Judgment is reversed or -appeal, this Settlement
Agreement does not require the Settling Party to pursue further modifications to the
Settlement Agreement and/or the Order and Judgment. Further, nothing in this
Settlement Agreement 'shall require or preclude the City's defense of the Order and
Judgment in the United States Supreme Court.
C. Dismissal With Prejudice If Court Denies Application. This
Settlement Agreement shall remain binding and in effect regardless of whether 1) the
Court declines to approve the, terms of the Settlement Agreement, and the Settling
Parties cannot; in good faith, agree on the terms 'of a modified motion, application,
'Settlement Agreement and/or Order, or 2) if the Settling Parties do agree to modify
the motion, application, Settlement Agreement and/or Order and the Court declines to
approve the terms of a modified Settlement Agreement through entry of the Order or
ModifiedOrder. In such an eventuality, the City shall dismiss with prejudice the
Action against the Settling Defendant and all claims for relief filed by City against
the Settling Defendant as provided in Section V B and Section VI B.
VII. INDEMNIFICATION
A. City's Duty To Defend And Indemnify. City agrees it shall, upon
entry of the Order contemplated in this Agreement or a voluntary dismissal with
prejudice of City's operating pleading (currently the TAC) in favor of the Settling
Defendant,' whichever occurs first, indemnify, protect, -defend and hold harmless the
Settling Defendant from any and all claims under federal, state or other'law asserted
against the Settling Defendant in the Action, or in any. -other. proceeding (whether in
equity, law or administrative), including without limitation, claims for (1)- the
recovery of costs incurred including any interest thereon, and/or costs to be incurred
in connection with preparing or implementing measures to clean up or abate the
Hazardous Substances at the Property, (2) damages arising from or related to the
Hazardous Substances at the Property, (3). statutory and equitable contribution and
indemnification arising.from or related to the Hazardous Substances at the Property,
and (4) attorneys' fees and costs and expert costs. and fees. Such claims shall include,
14 SETTLEMENT AGREEMENT
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but not be limited to, all, claims asserted by or that may be asserted by the POA and
the non -Settling Defendants against the Settling Defendant.
B. Citv Dutv to Defend and Indemnifv Conditional Upon Cooperation:
The City's duty to defend and indemnify the Settling Defendant shall be
governed by Sections V, VII and VIII. The City shall defend the Settling Defendant
with counsel selected from the staff of the Office of the Huntington Beach City
Attorney or other competent counsel ("Designated Counsel"), to be chosen in the sole
discretion of the City. The Settling Defendant agrees that as long as the City shall
defend, .indem- hify and hold the Settling. Defendant -harmless, the. same counsel that
represents the City may represent the Settling Defendant in this Action or other
proceeding involving the Property and its alleged contamination.
,By separately initialing here, the Settling Defendant waives any actual. or
potential conflict of interest of its defense counsel, and acknowledges and agrees. that
.there has been. a full disclosure and informed consent by all the Settling. Parties within
the meaning of State Bar Rule 3-310(B), (C) and (E) .permitting .dual representation of
clients.and further permitting the representation of interests adverse to a client or
former client with the informed written.consent of the client..
Initia s of Settling Defendant
The City's duty to defend and indemnify the Settling Defendant shall be
conditional upon the Settling Defendant's reasonable cooperation with and assistance
to Designated Counsel as follows:
1 In any proceeding were the City has a duty to defend and indemnify the
Settling Defendant pursuant to Section VIIA, or the City is proceeding
against a person or,entity pursuant to Section VE, the Settling Defendant
shall cooperate with Designated Counsel in said proceeding by testifying
at trial and submitting to a properly noticed oral deposition, providing
declarations necessary to the efficient prosecution of the proceeding and
assisting in responding to written discovery requests (Interrogatories,
Requests for Admission and Requests for Production) properly
propounded upon the Settling Defendant. The time expended by the
15 SETTLEMENT AGREEMENT
11 Settling Defendant in connection with attending the deposition or
2 '; assisting Designated Counsel in the.preparation of^necessary
.3 declarations'or responses to written discovery shall not be charged to,
4 Designated Counsel: To the extent"allowed by law; -Designated -Counsel
50 shall seek reimbursement of Settling Defendant's internal costs and
6 expenses, including costs associated with attending oral depositions and
assisting with and providing responses_ to written discovery.
8 2. To the extent they exist, can be located and are in the Settling
9
-Defendant's possession, the Settling Defendant shall cooperate with
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Designated Counsel' in'locating and identifying documents.that relate to
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firearms training at the Property and provide hard copies to Designated
l2
_ Counsel. To the extent allowed by law, Designated Counsel shall seek
reimbursement of the Settling Defendant's costs and expenses from the
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person or entity, other than Designated Counsel, requesting the -
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documents. To the extent possible, the hard copies will be provided
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within 30 days after the request is -received from Designated Counsel.
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3. Settling Defendant may required, at its own cost, to, expend funds in
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performance of the obligations. contained in this Subsection B, including
18 but not limited to personnel time and expense, incidental transportation,
.19
parking, telephone, fax and mailing costs, which funds shall -not be
20 reimbursed by the City.
21 VIII. APPEAL
22 A. Reversal Of Order And Appeal:, If the Court approves the
23 Settlement Agreement through`entry of the contemplated Order (including a modified
24 version of the Order) and the Order is appealed, the Settling Defendant agrees to
25 cooperate, with the City indefending the Order, at City's expense, through a final
26 judgment in the Ninth Circuit Court of Appeal. Nothing in this Settlement
27 Agreement shall require the Settling Defendant to meet and confer to modify or
2,8 submit to the Court a modified Settlement Agreement and/or Order in the .event of an
16 SETTLEMENT AGREEMENT
1 appeal and/or reversal of the Order. If an appeal is undertaken or the Order is
2 reversed on appeal; the City may dismiss with prejudice the TAC against the Settling
3 Defendant or; at its expense, pursue further court review. The City's duty to defend
'Y 4 and -indemnify the Settling Defendant'pursuant to. Section VII arises at the time of
5. entry of the Order (including a modified version of the Order): and continues
thereafter, regardless of whether any appeal or challenge to the Order is undertaken, : or
7 whether the Order is reversed on appeal.'
g g q preclude the Settling
8 .-.Nothing m this Settlement Agreement shall require or
9 Party's defense of the Order in the•United States Supreme Court.
1p
IX. EFFECTIVE DATE OF SETTLEMENT. .
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This Settlement Agreement shall become binding and effective on the City and
12 ..,the Settling Defendant.upori the "Effective Date," which is the date by which both of
the following occur: (1) the execution of the Settlement Agreement by the City; and
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(2) the execution of the Settlement Agreement`by the Settling Defendant.
X. 'CONTINUING JURISDICTION .
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The Settling Parties agree that the Court specifically retains jurisdiction over
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the subject matter of this.Action. and the Settling Parties for the purpose of (1)
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resolving any disputes arising under this Settlement Agreement, (2) issuing such
18 further orders or -directions as may be necessary or appropriate to construe,
19 implement; modify, or enforce the terms of this Settlement Agreement, and/or the
20
Order, and (3) for granting any further relief as the interests of justice may require.
21 ': � .
The Settling Parties further agree that if there -is a dispute over the terms of this
22 S'ettlement Agreement or performance of the�obligations arising from this Settlement
.2.3 Agreement which the disputing Settling Parties'cannot resolve among themselves'.
24 such dispute shall be heard and resolved by the Court.
25 XI. ADDITIONAL TERMS
26 A. Representations of Non-Assignment/Transfer. The Settling Parties
`27 , represent and warrant that they have not assigned or otherwise transferred, any claim,
28 cause. of action, or other right which has been released in this, Settlement Agreement.
17 SETTLEMENT AGREEMENT
l The Settling Parties agree to hold each other harmless, and to indemnify. each other
2 from and against,any claim made by any person or entity who purports to be the
3 -recipient of an assignment or other transfer of any claim, cause of action or right by .
4 the Settling Parties inconnection with the Action or the incident which gave rise to'
5 the Action.
6 B. Assumption of Risk. It is understood and agreed by the Settling
7 Parties that the facts may hereafter turn out to be other than or different from the facts
8 nowto be or believed to be true. Subject to the fraud' exception described in
9 Paragraph VC,.the Settling Parties expressly assume the risk"of the facts turning out
10
to be'different than, they now so appear, and that this Settlement Agreement shall be,,
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in all respects, effective. and not subject to termination, rescission, alteration, or other
12 such action by reason of any such difference in facts.
C. Waiver of Section. 1542. There is a risk that, after the execution of
-.13
this Agreement, the Property will manifest new damages, ,the scope, location, and/or
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character of which is unknown and/or not discovered at the time this Agreement is
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signed. There is a risk that the damage of which City and/or its attorney are presently
16
aware may become more serious, or otherwise increase in magni
.1.7tude (qualitatively
and/or quantativeiy). City shall, and hereby does, assume the above -mentioned risks.
18 The release set forth in this Settlement Agreement is expressly intended to cover and
19 include all. future damages, defects, and discoveries, including allrights and ,causes of
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-action arising against the Settling Defendant. City is aware. of the provisions of
21.- California Civil Code section 1542, which provides: .
A general release does not extend to claims which the
23 creditor does not know or suspect to exist in his or her
24 favor at the time of executing the release, which if known
25 by him or her must have materially affected his or her settlement
26 with the debtor."
27 City hereby expressly waives the provisions of Civil Code section 1542 as to all: .
28 matters within the scope of the claims released by this Agreement. City hereby
1$ SETTLEMENT AGREEMENT
1 warrants and guarantees that it has the full and complete authority to -release all such
2 claims on behalf of itself, and its agents, representatives, heirs, assigns, and
`3' successors in interest.
4 D. -_ `No Admission of Liability. It is understood and agreed that this
5 Settlement Agreement is a compromise of disputed claims, and that the agreements
6 made herein are not to be construed as an admission of liability on -the part of the
_ 7 Settling Defendant, and that the Settling'Defendant denies liability and intends
8" merely to avoid continued litigation, and that this Settlement Agreement is entered
9 into solely by way of compromise and settlement.
10 E. Parties Bear Own Costs And Fees. The Settling. Parties shall bear all
11
attorney's fees and costs arising from the actions of their own counsel in connection
with the Action, through the preparation and execution of this Settlement Agreement
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and entry of a dismissal, whether by court order or voluntary dismissal with
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prejudice, of the operative complaint (currently City's TAC) and all claims for relief
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filed by Cityagainst the Settling Defendant.
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F. Notice. All notices and other communications, and payments,
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pertaining to this Settlement Agreement shall be in writing and shall be deemed
17.
received when delivered personally, by overnight courier, or by facsimile to the
18 Settling Party or Settling Parties, as the case may be, at the following addresses (or
19 such other address for a Settling Party as shall be specified by that Settling Party in: a
20 notice pursuant to this Section).
21 AS TO THE CITY OF HUNTINGTON BEACH:
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Huntington Beach City Clerk
23 City of Huntington Beach
24 ' 2000 Main Street
25 Huntington Beach, CA 92648
Fax: (714) 374-1557
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19 SETTLEMENT AGREEMENT
1 . With Copy. To:
2 Scott F. Field, Assistant City Attorney
3 City of Huntington Beach
__.. 2000 Main Street; P.; O Boxa490
4 Huntington Beach, CA 92648
5 Fax: (714) 374-:1590
6 -AS TO- THE CITY OF GARDEN GROVE
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Garden Grove City Clerk
8. 11222 Acacia Parkway,
9 `Garden Grove, CA 92840
10 With Copy To:
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Adela Carrasco, Esq.
12 Rosen Saba LLP
13 468 North Camden Drive,, Third Floor
Beverly Hills, CA 90210
14 - : Fax: (310) 285-1728 f
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G. Cooperation. Each of the Settling Parties agrees to take such 1.6
,further
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acts or execute any and all further documents that maybe necessary or appropriate to.
18 make this Settlement Agreement legally binding -and to effectuate its purposes.
19 H. Settlement Agreement May be Executed in Counterparts.
This Settlement Agreement may be executed in any number of counterparts, and each.
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21. such counterpart shall be deemed to be an original instrument; however, all such
counterparts shall comprise but one Settlement Agreement:
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L Entire Agreement. This Settlement Agreement c
23onstitutes the full
and entire agreement between the Settling Parties., and the Settling Parties
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acknowledge that. there is no other agreement, oral and/or. written, between the
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Settling Parties heretorelating. to the Action:
26 J. Authority to Enter Agreement. Each person signing this Agreement
27 on behalf of one..of the Settling Parties hereto acknowledges that he/she -has the ,full.
28 authority to bind said Party.'
20 SETTLEMENT AGREEMENT
l K. 'Final Agreement. The Parties acknowledge that this Agreement and.
2 its. reduction to final Torm is the result of good, faith negotiations between the Parties;
3 and that the Settling Parties have. had the opportunity to'discuss this Agreement with
4� counsel. When signed; this greement is intended to be the` final Agreement between
5 the Settling Parties regarding the subject matter -hereof.
6" L. Interpretation of Agreement. This Agreement is -made and entered
7 into in the State, of California, and shall be interpreted, enforced, and -governed by and
8 under the laws of the State, of California. If it becomes necessary to interpret any of
9 the provisions of this. Agreement, it ,shall be 'assumed that the Agreement was jointly
10 drafted. by the Parties.
11 M. Modifications. This Agreement may be amended or modified only by
12.
a writing signed by all Parties to the Agreement. .
N. No inducement. The Settling -Parties warrant that no promise or
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inducement has'been made or offered by the Settling Parties other than those set forth
herein, and that this Settlement Agreement is not executed in reliance upon any
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statement orrepresentation of any such Settling Parties," or their representatives. The
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Settling Parties further represent that they have been represented by legal counsel
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during the course of the negotiations leading to the signing of this Settlement
18 Agreement, and that they have been advised by legal counsel with respect to the
19 meaning of this Settlement Agreement and its legal effect.
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Dated: ? -z -5 , 2006
.22 CITY O HUNTINGTON B ACH,
23 Plaintiff
By: PENELOPE CULBRETH-GRAFT,
-24 City Administrator
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APPROVED AS TO FORM:
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Dated: 2006 By:
28 SCOTT F. FIELD, Assistant City Attorney "
21 SETTLEMENT AGREEMENT
JENNIFER MCGRATH, City Attorney (Bar No. CA 1.79917)
SCOTT F.,FIELD, Assistant City Attorney (Bar No. CA 165709)
Box 190, 2000 Main Street
Huntington Beach, California 92648
Telephone; (714) 536-5555
Facsirr�il _ .(71�4) 374-1590 : _ -
E-mail": ;sfi0ldgsurfclty-hb.org
HAL D. GOLDFLAM, ESQ. (Bar No. 179689)
FRANDZEL ROBINS BLOOM &.CSATO, L.C.
6500 Wilshire Boulevard; 17th Floor
Los'Angeles, CA 90048-4920
Telephone: 323) 852-1000
Facsimile: 323_) 651-2577
E-mail: -hgo dflam@frandzel.com
Attorneys for Plaintiff
CITY OF. HUNTINCGTON BEACH
UNITED STATES DISTRICT COURT
CENTRAL'DISTRICT OF CALIFORNIA
CITY OF HUNTINGTON BEACH, a CASE.NO. SACV 0 1- 1125 JVS (ANx)
municipal corporation of the State of .
California and -charter city duly created
and existing under the laws of the State PROPOSED] ORDER AND
a ,of Califorma, JUDGMENT
Plaintiff,
vs
HUNTINGTON BEACH POLICE
OFFICERS.ASSOCIATION, a
Call fornia"mutual benefit corporation; .
et al.; .
Defendants.
And -Related Claims and Third Party
Complaints.
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ORDER AND JUDGMENT
THE COURT HAS CONSIDERED THE FOREGOING Settlement
Agreement by and between Plaintiff, City of Huntington Beach ("City") and
DefendanfLLand Third Party"Defendant, City of Garden Grove (the "Settling
Defendant"). Upon consideration of the Settlement Agreement and the Motion to
Approve the Settlement Agreement, the pleadings on file herein, and the arguments
of counsel, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, as follows: .
I. The Motion to Approve the Settlement Agreement By and Between
Plaintiff City of Huntington Beach and the Settling Defendant is granted in its
entirety.
2. The Settlement Agreement previously filed with the Court in this Action
is approved and adopted as the Judgment of this Court resolving this Action as
between the City and the Settling Defendant. The Court finds and decrees that there
is no just reason for delay and.accordingly directs the Clerk of the Court to enter this
Order and Judgment as the Judgment of this Court.
3. The Settlement Agreement is fair and reasonable, both -procedurally and
substantively, and was and is made in good faith, pursuant to- all relevant federal and
state law including without limitation California Code of Civil Procedure Section 877
and 877.6, 42 U.S.C. § 9613, and federal common law.
4. The Settlement Agreement is in the public interest in that it avoids
further expenditure of government funds on protracted litigation and makes funding
available to' resolve alleged environmental contamination at 18211 Gothard Street,
Huntington Beach ("the Property') that is the subject, of the action entitled City of
Huntington Beach vs. Huntington Beach Police Officers Association, United States
District Court, Case No.- SACV 01-1125 JVS (ANX)_(the "Action").
5. Pursuant to federal and state law, including but not limited to California
Code Civil Procedure Sections 877 and 877.6, 42 U.S.C. § 9613, and federal,
common law, the Settling Defendant is entitled to protection from, and is protected
from any and all claims under federal,, state or other law asserted against the Settling
2 SETTLEMENT AGREEMENT
1 Defendant in the Action, or in any other proceeding'(whether in equity, law or
2 'administrative), including, without, limitation, claims for (1) the recovery of costs
3 incurred including any interest thereon, and/or costs to be incurred in connection with
_`- 4 preparing or implementing measures~to clean up,or abate Hazardous Substances (as
5 that term is defined in the. Settlement. Agreement) at the Property; (2) damages arising..
6 from or related to Hazardous Substances at the Property, (3) statutory and equitable
7 contribution and indemnification arising from or related to Hazardous Substances at'
8 ° the Property, and (4) attorneys' fees and costs and expert costs and, fees. Such claims,
9 shall also include, without -limitation, all claims asserted by or that may be'asserted
10 by -the Third Party Plaintiff, Huntington Beach Police Officers Association, and the
1,1
other non -settling parties to the Action, or future parties to this.Action or partie& to-,
12 other proceedings (whether in equity, law or administrative) brought against the
13
Settling Defendant that arise from, relate to, or are connected with the subject matter
of the Action and the Property and its alleged contamination.
14
-6. As set forth in the Settlement Agreement, all claims, cross -claims;
counterclaims, and/or third party claims asserted against the Settling Defendant by
16
any and all parties in this Action are hereby dismissed with prejudice. All claims
17
asserted against the City by the Settling Defendant, and all claims asserted by the
18.Settling Defendant against any other defendants that may have settled pursuant to a
19 comparable settlement agreement, are also hereby dismissed with prejudice.
20 7. All claims, cross -claims counterclaims, or third party claims which have',
21 been, or could have been; asserted by any person or entity against the Settling
22 Defendant in this Action, including all claims described at paragraph 5 above, area
hereby barred.
8. The Court shall retain jurisdiction over the Settling Parties and
jurisdiction over the. subject matter of this Action for purposes of enforcing the
Settlement. Agreement, and this Order and Judgment of Dismissal.
9. Except as otherwise provided herein, each Settling Party shall bear its
own litigation costs and expenses, including attorneys' fees. Upon entry of the Order
3 SETTLEMENT AGREEMENT