HomeMy WebLinkAboutCity of Tustin - 2005-03-31I
•
J.
CITY OF HUNTINGTON BEACH
Inter -Department Communication
TO: JOAN FLYNN, City Clerk "`� 'A,
.
f
C
FROM: JENNIFER McGRATH, City Attorney cz-:
.,..
DATE: July 11, 2006
SUBJECT: City of Huntington Beach v HBFOAb.
;'
X
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 ease.
Attached please find original, fully executed Settlement Agreement between the City of "
Huntington Beach and the City of Tustin in the Gun Range litigation, with the request you
keep this Agreement on file in your office.
• I�r
IFER Mc6RATH
City Attorney
Attachments
1002
11
2
3
4
5
6'
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
JENNIFER MCGRATH, City Attorney (Bar No. CA 179917)
SCOTT F. FIELD, Assistant City Attorney (Bar No. CA 105709)
Box 190, 2000 Main Street
Huntington Beach, California 92648
Telephone: (714) 536-5555
Facsimile: (714) 374-1590
E-mail: sfield e,surfcity-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: hgoldflam e,frandzel.com
Attorneys for Plaintiff,
CITY OF HUNTINGTON BEACH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE, CENTRAL DISTRICT
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of California
and charter city duly created and existing under
the laws of the State of California,
Plaintiff,
vs.
STATE OF CALIFORNIA, COAST
COMMUNITY COLLEGE DISTRICT, CITY
OF TUSTIN, CITY OF STANTON AND
DOES 1 TO 100,
Defendants.
CASE NO. 05CCO0118
[Case Assigned to Judge Ronald L. Bauer, Dept.
CX103]
SETTLEMENT AGREEMENT BY AND
BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT
CITY OF TUSTIN
[PROPOSED] ORDER AND JUDGMENT
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
THIS SETTLEMENT AGREEMENT AND RELEASE is entered into by and between the
Plaintiff, City of Huntington Beach ("City") and Defendant, City of Tustin ("Tustin" or the
"Settling Defendant"). The City and Settling Defendant shall be referred to collectively as the
"Settling Parties," and sometimes individually as a "Settling Party." No other person or entity is a
party to this Agreement.
WHEREAS, on June 3, 2005, Plaintiff, City of Huntington Beach (the "City") filed that
certain lawsuit entitled City of Huntington Beach vs. State of California, et al, Orange County
Superior Court, Case No. 05CCO0118 (the "Action") in which it seeks contribution and other relief
arising under the California Hazardous Substance Account Act ("HSAA"), Calif. Health & Safety
Code § 25300 et seq., and for related tort causes of action, including nuisance and trespass;
WHEREAS, the Action concerns a parcel of land located at 18211 Gothard Street in
Huntington Beach, California (the "Property"). The City alleges that the Property was leased from
the City to the Huntington Beach Police Officer's Association (the "POA") from 1968 to 1997.
From 1971 through January 1997, the POA operated and maintained a gun range on the Property
(the "Gun Range");
WHEREAS, in a related action filed on November 25, 2001, in the United States District
Court for the Central District of California, entitled City of Huntington Beach v. Huntington Beach
Police Officers Association, et al., Case No. SACV 01-1125 JVS (ANx), the City sued the POA for
the cleanup of the Property due to its contamination from twenty-five (25) years of use as the Gun
Range ("Related Action");
WHEREAS, Tustin has generally denied the substantive claims and allegations in the
Action and further denied any use or significant use of the Property, and contended that any use was
an invited use;
WHEREAS, City alleges (reference to these allegations in this Agreement shall not be
construed as an adoption or admission by the Settling Defendant) as follows:
1. During the POA's ownership and operation of the Gun Range, the POA allowed
thousands of peace officers from numerous law enforcement agencies to discharge between
500,000 to 1,000,000 rounds of lead ammunition per year at the Property (collectively, the
Page 2 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
"Shooters"). The City contends that Tustin was one of the Shooters.
2. As part of its range maintenance program, the POA attempted to mine and recover
the spent ammunition rounds, slugs, and/or shell casings by sifting the soil on the Property
and recovering spent bullets for recycling. However, smaller fragments, shards, particles
and dust that resulted from bullets exploding at the range on impact were too small to be
recovered by the POA's mining and recovery procedures.
3. During the Shooters' use of the Property, hazardous substances and materials were
released on the Property, causing contamination of the soil and groundwater. Further, as a
proximate result of the Shooters' use of the Property, the City has incurred and will continue
to incur response costs regarding the Property.
4. The City has incurred costs and damages in connection with the investigation and
cleanup of various hazardous substances (as defined in Section III below, hereafter
"Hazardous Substances") at the Property. The City will incur additional costs and damages
in the future on account of the Hazardous Substances at the Property. Pursuant to the
California Hazardous Substance Act ("HSAA," Calif. Health & Safety Code § 25300 et
seq.) and various common law theories, the City is entitled to recover its response costs and
damages, and to obtain injunctive relief to compel the Shooters to remediate the Property.
5. Since the Gun Range was closed in January 1997, the City has been engaged in an
ongoing effort to rehabilitate the Property so that the public can safely use it for park and
recreational uses. Specifically, on or about December 8, 1988, the City received a lead
contamination assessment from Americlean Environmental Services, Inc., which describes
pervasive lead contamination throughout the Property. As a result of the contamination, the
City was legally compelled to take the steps necessary to remediate it and report the
contamination to the Orange County Health Care Agency ("OCHCA").
6. In December 2000, the City began drafting an environmental impact report ("EIR")
in order to determine the scope of contamination and evaluate remedial alternatives and
future reuse of the Property. In order to investigate the scope of contamination and evaluate
remedial alternatives, the City conducted several environmental assessments of the Property,
Page 3 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
which confirm that the soil at the Property is heavily contaminated with lead. The lead
contamination is classified as "Hazardous Substances" under the HSAA.
7. As a result of the contamination, the environmental assessment, cleanup, and
remediation of the Property are being directed and overseen by OCHCA. The City has
obtained from OCHCA an approved Remedial Action Plan ("RAP").
8. The City conducted a Bench Scale Feasibility Study to further test and investigate
the Property to determine more accurately the remediation cost for the Property. The study
was completed in July 2003, and based on the most recent estimates, the cost to remediate
the Property is $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 million ("ppm").
9. The City submitted the RAP to the California Department of Toxic Substances
Control ("DTSC"), who recommended that the City perform a health risk assessment to
determine if the minimum cleanup standard should be less than 750 ppm. The City is
undertaking such a risk assessment. If as a result of the risk assessment, a materially higher
cleanup standard is imposed, the volume of soil to be excavated could increase substantially,
and the cleanup cost could significantly and materially increase above and beyond the
current estimate.
10. In addition to the $2,100,000 estimate in the Feasibility Study, the cost to date for
regulatory approvals, including preparation of a draft EIR and RAP is $175,000. The cost
of the risk assessment analysis, which may cause revision of the RAP, and the remaining
regulatory approvals is estimated to be $75,000. Taking into account contingencies, the
estimated cost of remediation is $3,000,000;
WHEREAS, the Settling Defendant maintains it was not liable for any claims for relief
asserted in the Action and alleges (reference to these allegations in this Agreement shall not be
construed as adoption or admission of these allegations by the City) as follows:
1. The City owned and permitted the use of its Property as a Gun Range, and failed to
properly inspect and regulate its use to ensure the permitted activity complied with all
environmental laws.
Page 4 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. The City's police department was the primary user of the Gun Range throughout the
period it was in operation and, thereby, was the primary contributor to the alleged
contamination.
3. Knowing that the Property would be used as a shooting range, the City failed to
properly regulate and restrict the use of non -lead free bullets.
4. The City invited and encouraged other city police departments to use the Gun Range
as part of joint training sessions conducted for the benefit of City's police department, and
thereby represented all such activities were lawfully undertaken.
5. With the City's knowledge and approval, the bullets used at the Gun Range were
supplied by and purchased from the POA, City's tenant.
6. The City financially benefited from operating peace officer firearms courses at the
Property where it directed course participants to use the Gun Range and the bullets supplied
by the POA, and thereby represented all such activities were lawfully undertaken.
7. The City failed to properly maintain the Property to prevent the alleged disposal
release or threatened release of hazardous waste or hazardous substances.
8. The City has unreasonably delayed in remediating the Property, and negligently
inspected and tested the Property so as to cause the spread and migration of the alleged
contamination.
9. The sole cause of the alleged contamination of the Property was the City's and the
POA's actions and inactions.
10. As a user of the Gun Range, the Settling Defendant's activities on the Property, if
any, do not constitute the disposal or release or threatened release of Hazardous Substances
(as the latter term is defined in Section III below and under the HSAA);
WHEREAS, prior to entering into this Settlement Agreement, Tustin has provided verified
discovery responses regarding its use of the Range. Also, the City has obtained, and Tustin has
provided public records relevant to its use of the Range. Together, these materials provide an
estimate of the number of rounds of ammunition that employees of Tustin fired at the Range;
Page 5 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WHEREAS, the settlement terms as reflected in this Settlement Agreement have been
reached by the City of Huntington Beach and Tustin;
WHEREAS, without admitting any issues of fact or law, the Settling Parties agree that the
settlement 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 A, or a substantially similar Order and Judgment;
NOW, THEREFORE, in consideration 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 Orange County Superior Court (Hon. Ronald L. Bauer
presiding) (the "Court") has jurisdiction over the Settling Parties and jurisdiction over the subject
matter of the Action. For purposes of the Court's review, approval and enforcement of this
Settlement Agreement, the Settling Parties waive any and all objections and defenses they may
have to the jurisdiction of the Court, to venue, or to service of process.
IL PARTIES BOUND
This Settlement Agreement applies to, is binding upon, and inures to the benefit of each of
the Settling Parties, and each of their agents, officers, directors, elected officials, appointed
officials, administrators, representatives, predecessors, successors, and assigns. Each Settling Party
has indicated its acceptance and approval of the terms and conditions hereof by having a duly
authorized representative execute this document below.
III. HAZARDOUS SUBSTANCES
As used in this Settlement Agreement, the term "Hazardous Substances" includes all
substances defined as hazardous substances under Section 25316 of the California Health & Safety
Page 6 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Code. Further, because Section 25316 incorporates by reference the Resource Conservation and
Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6901 et seq., all waste defined as hazardous waste
under RCRA, as heretofore or hereafter amended, is included in the definition of Hazardous
I Substances.
IV. SETTLEMENT PAYMENT
A. Amounts. Subject to and consistent with the terms and provisions of this
Agreement, the Settling Defendant shall pay Twenty -Three Thousand Dollars ($23,000.00) to the
City of Huntington Beach.
B. Payment. The Settling Defendant shall deliver its settlement payment to counsel
for the Plaintiff at counsel's address listed in Section XI.G (Notice), within 1) fifty (50) business
days after: Plaintiff and the Settling Defendant have signed this Agreement and Plaintiff's initial
motion or application for approval of this Agreement and entry of the Order is heard, or 2) twenty
(20) business days after this Agreement is so executed and a dismissal with prejudice has been
entered in favor of the Settling Defendant, whether by Court Order or Plaintiff's voluntary
dismissal with prejudice, whichever occurs first. Payment shall be in the form of a check made
payable to "City of Huntington Beach."
V. DISMISSAL AND RELEASE
A. Dismissal of the Entire Action. The City shall use its best efforts to cause the
dismissal with prejudice of the entire Action against the Settling Defendant, including without
limitation, seeking the Court's 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 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 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. This dismissal shall include, without limitation,
Page 7 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
all claims asserted, or which could have been asserted, by the Settling Defendant against each other
party in the Action concerning the Property for which there is a comparable dismissal of that party's
claims against the Settling Defendant.
B. Dismissal of the Action As To Tustin. The City agrees that in the event it is
unsuccessful in obtaining Court approval of the Settlement Agreement through entry of the Order
or, if submitted, modified Order, the City shall file a voluntary dismissal with prejudice of the
Action as to the Settling Defendant, within fifteen (15) business days of the denial of the Order or,
if submitted, within five (5) business days of the denial of the modified Order, and thereafter shall
defend and indemnify the dismissed Settling Defendant as provided in Section VII.
C. Release. Save and except for (i) claims arising from alleged breaches of this
Settlement Agreement, or (ii) claims based on fraud in the declaration and disclosure referred to at
Section VI.A (Good Faith Disclosure), or (iii) claims expressly preserved in this Settlement
Agreement, the 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 claims, 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 a public 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 and to the Related Action for which there is a
reciprocal release of that party's claims against the Settling Defendant.
Page 8 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
D. No Release of Non -Settling Parties by the City and the Settling Defendant. 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.
City expressly 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.
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.0
(Release) as to each other party to the Action and to the Related Action for which there is a
reciprocal release of that 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, whether a party in the Action, Related Action, or otherwise, and whether
asserted 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 the 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 (Indemnification), 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 employees
and students for firearms training between 1971 and 1997, the Settling Parties acknowledge and
Page 9 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
2
3
4
5
6
7
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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.
With regard to any claims for costs, damages, or other relief asserted, or which could have
been asserted, against the Settling Defendant by any person or entity that is not a signatory to this
Settlement Agreement on account of the release(s) of Hazardous Substances on, under, or at the
Property, the Settling Parties agree that upon approval of this Settlement Agreement by the Court,
the Settling Defendant is entitled to the full benefit of any and all applicable provisions of federal
and state law, whether statutory, common law, decisional, or otherwise, including but not limited to
California Code of Civil Procedure Sections 877 and 877.6, extinguishing or limiting Settling
Defendant's 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 disposal,
release or threatened release of Hazardous Substances on, under, or at the Property, and the claims
made in the Action are matters addressed in this Settlement Agreement. The Settling Parties
acknowledge and agree that the dismissal of claims as described in Section V (Dismissal and
Release) and elsewhere in this Settlement Agreement, and the protection from contribution and
indemnity claims under all applicable state and federal laws and authorities, including without
limitation contribution and indemnity claims, are integral and non -divisible aspects of this
Settlement Agreement and as such are necessary and material terms in the Order. Hence, the City is
required to seek entry by the Court of the Order approving this Settlement Agreement substantially
in the form set forth in Exhibit A as a condition precedent to the obligations of the Settling
Defendant under Section IV (Settlement Agreement) of this Settlement Agreement.
Accordingly, as promptly as reasonably practicable after this Settlement Agreement has
been executed, the City shall undertake, and the Settling Defendant through its respective counsel
shall join in, a mutually acceptable joint motion or other appropriate legal proceeding(s) as may be
Page 10 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
necessary or appropriate to secure the Court's approval of the Settlement Agreement, the
contribution protection contemplated herein, and the dismissal of claims contemplated herein.
B. Revised Application If Court Denies Motion. If for any reason the Court
declines to approve the terms of this Settlement Agreement through entry of the Order, the City
shall seek direction and clarification from the Court concerning those aspects of the motion,
application, Settlement Agreement, and/or Order it finds unacceptable. The Settling Parties then
shall meet and confer, telephonically or in person within fifteen (15) business days following such
denial, to discuss the items found unacceptable by the Court and attempt in good faith to agree upon
amendments to the Settlement Agreement, the motion or application to approve the Settlement
Agreement, and/or the Order so as to make them acceptable to the Court. Promptly thereafter, if
agreement is reached and as provided herein, the City 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.
Nothing in this Settlement Agreement shall require the Settling Parties to 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. Nothing in this Settlement Agreement shall be read,
interpreted or construed as requiring the Settling Party to modify the settlement amount, the City's
commitment to obtain an order of dismissal or voluntarily dismiss the action with prejudice, and the
City's duty to defend and indemnify the Settling Defendant once a dismissal is entered. If the
Settling Parties are unable to agree to any modifications within said fifteen (15) business day
period, the City shall file a voluntary dismissal with prejudice of the complaint in the Action as to
the Settling Defendant.
If the Settling Parties agree to modify either the motion, or application or Settlement
Agreement or Order, the City shall reapply for approval of the Settlement Agreement and/or Order,
as modified, from the Court within fifteen (15) business days after the Settling Parties agree to the
modifications. If the Court declines to approve the motion or application or Settlement Agreement
and/or Order, as modified, the City shall file a voluntary dismissal with prejudice in favor of the
Settling Defendant within five (5) business days after the Court so declines.
Page 11 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF.
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
If the modified Order and Judgment is reversed on appeal, this Settlement Agreement does
not require the Settling Parties 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 or Settling Party's defense of the Order and Judgment in the California or United States
Supreme Court.
If the Order and Judgment is reversed on appeal, the City's duty to defend and indemnify as
set forth in Section VII herein shall not be affected in any manner.
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 Modified Order. 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 (Dismissal of the Complaint) and Section VI.B (Revised Application If
Court Denies Motion).
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 complaint
in the Action as to the Settling Defendant, whichever occurs first, indemnify, protect, defend and
hold harmless the Settling Defendant and its agents, officers, directors, employees, elected officials,
and administrators, whether current or former, 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
Page 12 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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, but
not be limited to, all claims asserted by or that may be asserted by the POA against the Settling
Defendant.
The City acknowledges and agrees that should the Court enter an Order that dismisses the
City's complaint against the Settling Defendant, but bars less than all of the indemnity and/or
contribution claims that have been, or can or could be brought in the Action on account of the
release of Hazardous Substances on, under or at the Property, then the above -referenced duty to
defend and indemnify shall still apply.
B. City Duty to Defend and Indemnify Conditional Upon Cooperation. The
City's duty to defend and indemnify the Settling Defendant shall be governed by Sections V
(Dismissal and Release), VII (Indemnification) and VIII (Appeal). 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, indemnify 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 inter is
adverse to a client or former client with the informed written consent of the client.
Initials Settling
Defendant
The City's duty to defend and indemnify the Settling Defendant shall be conditional upon
the Settling Defendant' reasonable cooperation with and assistance to Designated Counsel as
follows:
Page 13 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. In any proceeding where the City has a duty to defend and indemnify the Settling
Defendant pursuant to Section VII.A (City's Duty to Defend and Indemnify), or the City is
proceeding against a person or entity pursuant to Section V.E (Assignment to City of
Settling Defendant's Claims Against Non -Settling Parties), 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 Settling Defendant in connection
with attending the deposition or assisting Designated Counsel in the preparation of
necessary declarations or responses to written discovery shall not be charged to Designated
Counsel. To the extent allowed by law, Designated Counsel shall seek reimbursement of
Settling Defendant's internal costs and expenses, including costs associated with attending
oral depositions and assisting with and providing responses to written discovery.
2. To the extent they exist, can be located and are in the Settling Defendant's
possession, the Settling Defendant shall cooperate with Designated Counsel in locating and
identifying documents that relate to firearms training at the Property and provide hard
copies to Designated Counsel. To the extent allowed by law, Designated Counsel shall seek
reimbursement of the Settling Defendant's costs and expenses from the person or entity,
other than Designated Counsel, requesting the documents. To the extent possible, the hard
copies will be provided within 30 days after the request is received from Designated
Counsel.
3. Settling Defendant may be required, at its own cost, to expend funds in performance
of the obligations contained in this Subsection B, including but not limited to personnel time
and expense, incidental transportation, parking, telephone, fax and mailing costs, which
funds shall not be reimbursed by the City.
Page 14 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VIII. APPEAL
A. Appeal. If the Court approves the Settlement Agreement through entry of the
contemplated Order (including a modified version of the Order) and the Order is appealed, the
Settling Defendant agrees to cooperate with the City in defending the Order, at City's expense,
through a final judgment in the California Court of Appeal. Nothing in this Settlement Agreement
shall require the Settling Defendant to meet and confer to modify or submit to the Court a modified
Settlement Agreement and/or Order in the event of an appeal and/or reversal of the Order. If an
appeal is undertaken or the Order is reversed on appeal, the City may dismiss with prejudice the
Action as against the Settling Defendant or, at its expense, pursue further court review. The City's
duty to defend and indemnify the Settling Defendant pursuant to Section VII (Indemnification)
arises at the time of 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 whether the
Order is reversed on appeal.
Nothing in this Settlement Agreement shall require or preclude the Settling Party's defense
of the Order in the California Supreme Court.
IX. EFFECTIVE DATE OF SETTLEMENT
This Settlement Agreement shall become binding and effective on the City and the Settling
Defendant upon the "Effective Date," which is the date by which the Settling Parties have executed
the Settlement Agreement.
X. . CONTINUING JURISDICTION
The Settling Parties agree that the Court specifically retains jurisdiction over the subject
matter of this Action and the Settling Parties for the purpose of (1) resolving any disputes arising
under this Settlement Agreement, (2) issuing such further orders or directions as may be necessary
or appropriate to construe, implement, modify, or enforce the terms of this Settlement Agreement,
and/or the Order, and (3) for granting any further relief as the interests of justice may require. The
Settling Parties further agree that if there is a dispute over the terms of this Settlement Agreement
or performance of the obligations arising from this Settlement Agreement which the disputing
Page 15 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Settling Parties cannot resolve among themselves, such dispute shall be heard and resolved by the
Court.
XI. ADDITIONAL TERMS
A. Representations of Non-Assiwment/Transfer. The Settling Parties represent
and warrant that they have not assigned or otherwise transferred any claim, cause of action, or other
right which has been released in this Settlement Agreement. The Settling Parties agree to hold each
other harmless, and to indemnify each other from and against any claim made by any person or
entity who purports to be the recipient of an assignment or other transfer of any claim, cause of
action or right by the Settling Parties in connection with the Action or the incident which gave rise
to the Action.
B. Assumption of Risk. It is understood and agreed by the Settling Parties that the
facts may hereafter turn out to be other than or different from the facts now known to be or believed
to be true. Subject to the ftaud exception described in Paragraph V.0 (Release), the Settling Parties
expressly assume the risk of the facts turning out to be different than they now so appear, and that
this Settlement Agreement shall be, in all respects, effective and not subject to termination,
rescission, alteration, or other such action by reason of any such difference in facts.
C. Waiver of Section 1542. There is a risk that, after the execution of this
Agreement, the Property will manifest new damages, the scope, location, and/or character of which
is unknown and/or not discovered at the time this Agreement is signed. There is a risk that the
damage of which City and/or its attorney are presently aware may become more serious, or
otherwise increase in magnitude (qualitatively and/or quantatively). City shall, and hereby does,
assume the above -mentioned risks. The release set forth in this Settlement Agreement is expressly
intended to cover and include all future damages, defects, and discoveries, including all rights and
causes of action arising against the Settling Defendant. City is aware of the provisions of California
Civil Code section 1542, which provides:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known
Page 16 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
by him or her must have materially affected his or her settlement
with the debtor."
City hereby expressly waives the provisions of Civil Code section 1542 as to all matters within the
scope of the claims released by this Agreement. City hereby warrants and guarantees that it has the
full and complete authority to release all such claims on behalf of itself, and its agents,
representatives, heirs, assigns, and successors in interest.
D. No Admission of Liability. It is understood and agreed that this Settlement
Agreement is a compromise of disputed claims, and that the agreements made herein are not to be
construed as an admission of liability on the part of the Settling Defendant, and that the Settling
Defendant denies liability and intends merely to avoid continued litigation, and that this Settlement
Agreement is entered into solely by way of compromise and settlement.
E. Parties Bear Own Costs And Fees. The Settling Parties_ shall bear all 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 and entry of a dismissal, whether by
court order or voluntary dismissal with prejudice, of the operative complaint in the Action and all
claims for relief filed by City against the Settling Defendant.
F. Notice. All notices and other communications, and payments, pertaining to this
Settlement Agreement shall be in writing and shall be deemed received when delivered personally,
by overnight courier, or by facsimile to the Settling Party or Settling Parties, as the case may be, at
the following addresses (or such other address for a Settling Party as shall be specified by that
Settling Party in a notice pursuant to this Section).
AS TO THE CITY OF HUNTINGTON BEACH
Huntington Beach City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Fax: (714) 374-1557
Page 17 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1'
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
With Copy To:
Scott F. Field, Assistant City Attorney
City of Huntington Beach
2000 Main Street, P. O. Box 190
Huntington Beach, CA 92648
Fax: (714) 374-1590
AS TO THE CITY OF TUSTIN
City of Tustin
Office of the City Clerk
300 Centennial Way
Tustin, CA 92780
Fax: (714)832-6382
With Copy To:
Mark M. Monachino, Esq.
Woodruff, Spradlin & Smart
701 S. Parker, Suite 8000
Orange, CA 92868
G. Cooperation. Each of the Settling Parties agrees to take such further acts or
execute any and all further documents that may be necessary or appropriate to make this Settlement
Agreement legally binding and to effectuate its purposes.
H. Settlement Agreement May be Executed in Counterparts.
This Settlement Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument; however, all such counterparts shall
comprise but one Settlement Agreement.
I. Entire Agreement. This Settlement Agreement constitutes the full and entire
agreement between the Settling Parties, and the Settling Parties acknowledge that there is no other
agreement, oral and/or written, between the Settling Parties hereto relating to the Action.
J. Authority to Enter Agreement. Each person signing this Agreement on behalf of
one of the Settling Parties hereto acknowledges that he/she has the full authority to bind said Party.
K. Final Agreement. The Parties acknowledge that this Agreement and its reduction
to final form is the result of good faith negotiations between the Parties, and that the Settling Parties
Page 18 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Settling Parties have had the opportunity to discuss this Agreement with counsel. When signed,
this Agreement is intended to be the final Agreement between the Settling Parties regarding the
subject matter hereof.
L. Interpretation of Agreement. This Agreement is made and entered into in the
State of California, and shall be interpreted, enforced, and governed by and under the laws of the
State of California. If it becomes necessary to interpret any of the provisions of this Agreement, it
shall be assumed that the Agreement was jointly drafted by the Parties.
M. Modifications. This Agreement may be amended or modified only by a writing
signed by all Parties to the Agreement.
N. No Inducement. The Settling Parties warrant that no promise or 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 statement or representation of any such
Settling Parties, or their representatives. The Settling Parties further represent that they have been
represented by legal counsel
during the course of the negotiations leading to the signing of this Settlement Agreement, and that
they have been advised by legal counsel with respect to the meaning of this Settlement Agreement
and its legal effect.
Dated: u 1 y 10 ' 2006
CITY OF AUNTINGTON BEACH,
Plaintiff
By: PENELOPE CULBRETH-GRAFT,
City Administrator
APPROVED AS TO FORM:
By:
SCOTT F. FIELD, Assistant City Attorney
Page 19 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated:
2006
Dated:yt �..3 , 2006
CITY OF TUSTIN
Defendant �9
By Its p e e ti/�
APPROVED AS TO FORM:
By: l
MARK M. MONACHINO, ESQ.
WOODRUFF, SPRADLIN & SMART
Page 20 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT A
JENNIFER MCGRATH, City Attorney (Bar No. CA 179917)
SCOTT F. FIELD, Assistant City Attorney (Bar No. CA 105709)
Box 190, 2000 Main Street -
Huntington Beach, California 92648
Telephone: (714) 536-5555
Facsimile: (714) 374-1590
E-mail: sfield(ksurfcity-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: hgoldflaingfrandzel.com
Attorneys for Plaintiff,
CITY OF HUNTINGTON BEACH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE, CENTRAL DISTRICT
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of California
and charter city duly created and existing under
the laws of the State of California,
Plaintiff,
VS.
STATE OF CALIFORNIA, COAST
COMMUNITY COLLEGE DISTRICT, CITY
OF TUSTIN, CITY OF STANTON AND
DOES 1 TO 100,
Defendants.
CASE NO. 05CCO0118
[Case Assigned to Judge Ronald L. Bauer, Dept.
CX103]
[PROPOSED] ORDER AND JUDGMENT
ON GOOD FAITH SETTLEMENT
BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND
DEFENDANT, CITY OF TUSTIN
THE COURT HAS CONSIDERED THE FOREGOING Settlement Agreement by and
between Plaintiff, City of Huntington Beach ("City") Defendant, the City of Tustin (the "Settling
Page 21 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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:
1. The Motion to Approve the Settlement Agreement By and Between Plaintiff City of
Huntington Beach and Defendant City of Tustin 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 law including without
limitation California Code of Civil Procedure Section 877 and 877.6.
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 v. State of California, et al,
Orange County Superior Court, Case No. 05CC00118 (the "Action").
5. Pursuant to all applicable law, including but not limited to California Code Civil
Procedure Sections 877 and 877.6, 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
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 Hazardous Substances (as that term is defined in the Settlement Agreement) at the
Property, (2) damages arising from or related to Hazardous Substances at the Property, (3) statutory
Page 22 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and equitable contribution and indemnification arising from or related to Hazardous Substances at
the Property, and (4) attorneys' fees and costs and expert costs and fees. Such claims shall also
include, without limitation, all claims asserted by or that may be asserted by Huntington Beach
Police Officers Association, or any parties to other proceedings (whether in equity, law or
administrative) brought against the Settling Defendant that arise from, relate to, or are connected
with the subject matter of the Action and the Property and its alleged contamination.
6. As set forth in the Settlement Agreement, all claims, cross -claims, counterclaims,
and/or third party claims asserted against the Settling Defendant by any and all parties in this
Action are hereby dismissed with prejudice. All claims asserted against the City by the Settling
Defendant, and all claims asserted by the Settling Defendant against any other defendants that may
have settled pursuant to a reciprocal settlement agreement, are also hereby dismissed with
prejudice.
7. All claims, cross -claims, counterclaims, or third party claims which have been, or
could have been, asserted by any person or entity against the. Settling Defendant in this Action,
including all claims described at paragraph 5 above, are 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 and Judgment of Dismissal,
the City shall have the duty to defend and indemnify the Settling Defendant pursuant to the terms of
the Settlement Agreement and Release.
Dated:
IT IS SO ORDERED AND JUDGMENT IS SO ENTERED.
Orange County Superior Court Judge
Page 23 of 23
SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF
HUNTINGTON BEACH AND DEFENDANT CITY OF TUSTIN