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HomeMy WebLinkAboutHBPOA - 2005-11-07CITY OF HUNTINGTON BEACH X Inter -Department Communication VIA --e t.J ZO-4 C*7 M TO: JOAN FLYNN, City Clerk 0-< FROM: SCOTT FIELD, Assistant City Attorney 3 DATE: December 19, 2005 x SUBJECT: City of Huntington Beach v HBPOA On November 7, 2005, the City Council authorized the Mayor and City Clerk to sign the Settlement Agreement between the United States of America and the City regarding the Gun Range case. Attached please find a copy of the announcement from the Action Agenda for November 7, 2005, I have attached two originals of the Settlement Agreement. Would you please attest to the two sets of the Agreement and have the Mayor sign them, Anything you can do to obtain the Mayor's signature today, December 19, 2005, would be much appreciated. SCOTT FIELD Assistant City Attorney Attachments G I r F i GAPLEAD\Gun Range\CorrespondenceWemo to Clerk re U.S.Aoc ACTION AGENDA CITY COUNCIL/REDEVELOPMENT AGENCY CITY OF HUNTINGTON BEACH MONDAY NOVEMBER 7, 2005 4:00 P.M. - Room B-8 6:00 P.M. - Council Chambers Civic Center, 2000 Main Street Huntington Beach, California 92648 4:00 P.M. - Room B-8 4:03 p.m. Call City Council/Redevelopment Agency Meeting to Order Roll Call Hansen, Coerper, Sullivan, Green, Bohr, Cook (Mayor Hardy has requested permission to be absent pursuant to Resolution No. 2001-54) Present, Mayor Hardy and CM Bohr absent Pursuant to the Brown (Open Meetings) Act the City Clerk Announces Late Communications Received by Her Office Which Pertain to Items on the Agenda (1) The Brown (Open Meetings) Act requires that copies of late communications submitted by City Councilmembers or City Departments are to be made available to the public at the City Council meeting. (2) Late communications submitted by members of the public are to be made available to the public at the City Clerk's Office the morning after the Council meeting. (Late Communications are communications regarding agenda items that have been received by the City Clerk's Office following distribution of the agenda packet.) SS #3 Public Comments Regarding 4:00 P.M. Portion of Council Meeting for Study Session and Closed Session Agenda Items Speaker inquired about water utility companies and if the Study Session No. 1 topic applies to Poseidon Resources. Public Works Director Robert F. Beardsley responded to the speaker's inquiry, clarifying that Poseidon is a private, not a public utility. (4) November 7, 2005 - Council/Agency Agenda - Page 4 (City Council) Closed Session — Pursuant to Government Code Section 54957.6 to meet with its designated representatives: Agency Negotiators: Penelope Culbreth- Graft, City Administrator; Chuck Thomas, Acting Deputy City Administrator, Dan Villella, Finance Officer; and Irma Youssefieh, Human Resources Manager regarding labor relations matters — meet and confer with the following employee organizations: MEA and SCLEA. Subject: Labor Relations — Meet & Confer. (120.80) (City Council) Closed Session - Pursuant to Government Code Section 54957 to consider personnel matters. Subject: Review of Contract Terms for Deputy City Administrator. (120.80) 6:00 P.M. - Council Chambers 6:15 p.m. MPT Sullivan announced the passing of Art Mendez, 15 year City employee, and dedicated the meeting to his memory. MPT Sullivan announced notices of absence from Mayor Hardy and CM Bohr pursuant to Resolution No. 2001-54. MPT Sullivan and Councilmembers wished City Clerk Joan L. Flynn a Happy Birthday. The City Attorney Shall Determine If Any Actions Taken By The City Council or Redevelopment Agency In Closed Session Shall Require A Reporting On Those Actions As Required By Law (Government Code §54957.1(a) (3) (B)). Attorney McGrath announced that in Closed Session on November 7, 2005 the City Council voted 5-0 to authorize the Mayor to sign and the City Clerk to attest to a settlement agreement in amount of $55,000 in the case of City of Huntington Beach vs Huntington Beach Police Officers Association, U.S. District Court Case No. SA01-1125JVS and related actions regarding the Huntington Beach Gun Range. Roll Call Hansen, Coerper, Sullivan, Green, Bohr, Cook (Mayor Hardy has requested permission to be absent pursuant to Resolution No. 2001-54) Present, Mayor Hardy and CM Bohr absent 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 PRINTED ON 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@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@frandzel.com Attorneyys for Plaintiff CITY OF HUNTINGTON BEACH UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 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. HUNTINGTON BEACH POLICE OFFICERS ASSOCIATION, a California mutual benefit corporation; et al., Defendants. And Related Claims and Third Party Complaints. CASE NO. SACV 01-1125 JVS (ANx) SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF HUNTINGTON BEACH AND DEFENDANT UNITED STATES OF AMERICA, WITH [PROPOSED] ORDER field/plead/gun range/settlement agreement SETTLEMENT AGREEMENT 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 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made, as of the Effective Date of this Agreement as defined in Paragraph 3 below, between Plaintiff, City of Huntington Beach ("Plaintiff') and Defendant and Third -Party Defendant, United States of America ("United States"), collectively referred to as "the Settling Parties." WHEREAS, Plaintiff brought this action styled City of Huntington Beach v. Huntington Beach Police Officers Association and bearing Civil Action Number SACVO I - 1125 -JVS-AN in the United States District Court for the Central District of California ("the Action"); WHEREAS, the Action involves claims by Plaintiff under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986) (hereinafter "CERCLA"), together with other claims, seeking to recover certain costs Plaintiff has allegedly incurred or will allegedly incur in response to the release or threatened release of allegedly hazardous substances at what was formerly a gun range located at 18211 Gothard Street, Huntington Beach, California, and described in paragraph 3 of Plaintiff's Third Amended Complaint as the "Property" and seeking a declaration as to the various Defendants' liability for costs to be incurred in the future; WHEREAS, the Settling Parties desire to enter into this Agreement to have, subject to the terms of this Agreement, a full and final resolution of any and all Plaintiff's claims that were, could now be, or hereafter be asserted against the United States in connection with the Property and to avoid the complication and expense of further litigation of such claims concerning the Property; WHEREAS, a non -settling party in the Action, the Huntington Beach Police Officers Association ("POA"), has filed cross -claims against the United States in the Action; SETTLEMENT AGREEMENT 1 2 3 4 5 6 7 8 9 10 11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the Settling Parties agree that this Agreement is fair, reasonable and in the public interest; and WHEREAS, the United States enters into this Agreement as a final settlement of Plaintiff's claims in connection with the Property and does not admit any liability arising from occurrences or transactions pertaining to the Property; NOW, THEREFORE, IT IS AGREED that: 1. The Parties. The "Settling Parties" to this Agreement are Plaintiff and the United States. 2. Binding Agreement. This Agreement applies to, is binding upon, and inures to the benefit of Settling Parties (and their successors, assigns, and designees). 3. Effective Date. The Effective Date of this Agreement shall be the date the Court approves this Agreement in any form substantially similar to the Proposed Order attached hereto such that the Court dismisses any "Covered Matters." If the Court denies approval of this Agreement, the Plaintiff still shall make a good faith effort to effectuate a dismissal with prejudice of the Action, in which case the date of dismissal shall be the Effective Date. 4. The Property. The "Property" shall mean the former gun range located at 18211 Gothard Street in Huntington Beach, California, and as described in paragraph 3 of Plaintiff's Third Amended Complaint. 5. Covered Matters. Except as provided by Paragraph 10 of this Agreement, "Covered Matters" means any and all past, present, or future claims that were, could now be or hereafter could be asserted by Plaintiff against the United States arising out of or in connection with any conditions at the Property, including any claims regarding off -site contamination that may be emanating from the Property. 6. United States and City of Huntington Beach. The "United States" � means the United States of America, including all of its departments, agencies and 2 SETTLEMENT AGREEMENT 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 I instrumentalities. The "City of Huntington Beach" means the City of Huntington Beach, California, including all of its departments, agencies, and instrumentalities. 7. Release and Covenant Not To Sue by Plaintiff. Except as provided by Paragraph 10 of this Agreement, upon the Effective Date of this Agreement, Plaintiff hereby forever releases, discharges, and covenants and agrees not to assert (by way of the commencement of an action, the joinder of the United States in an existing action or in any other fashion) the United States from any and all Covered Matters, whether brought in law or in equity, which it may have had, now have, or hereafter have, including, but not limited to, claims under CERCLA sections 107 and 113. 8. Protection Against Claims. a. The Settling Parties acknowledge and agree that the payment to be made by the United States pursuant to this Agreement represents a good faith compromise of disputed claims and that the compromise represents a fair, reasonable, and equitable discharge for Covered Matters. b. Any rights the United States may have to obtain contribution or otherwise recover costs or damages from persons not party to this Agreement are preserved. C. With regard to any claims for costs, damages or other claims against the United States related to Covered Matters, the Settling Parties agree that the United States is entitled to contribution protection pursuant to section 113(f) of CERCLA, 42 U.S.C. § 9613(f), the Uniform Comparative Fault Act, and any other applicable provision of federal or state law, whether by statute or common law, extinguishing the United States' liability to persons not party to this Agreement. Accordingly, the United States shall bring, and Plaintiff shall join in and/or support, as may be appropriate, such legal proceedings as necessary to secure the Courts approval of this Agreement and entry of the Order attached hereto, and to secure and maintain the contribution protection contemplated in this Agreement. 3 SETTLEMENT AGREEMENT 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. This Agreement shall remain binding and in effect regardless of whether or not the Court approves the terms of the Agreement. In either event, the Plaintiff shall seek dismissal with prejudice of the Action as to the United States. 9. Paymement. a. Within ninety (90) days after the Effective Date, the United States shall pay Fifty -Five Thousand Dollars ($55,000) to Plaintiff. Payment shall in the form of a check or checks make payment payable to the "City of Huntington Beach" and sent to Shari Freidenrich, City Treasurer, City of Huntington Beach, 2000 Main Street, Huntington Beach, CA 92648, or by Electronic Funds Transfer in accordance with instructions provided by the Plaintiff. b. If such payment is not made in full within ninety (90) days after the Effective Date of this Agreement, then interest on the unpaid balance shall be paid commencing on the 91 st day after the Effective Date. Interest shall accrue at the rate specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of Title 26 of the United States Code. C. Said payment by the United States is subject to the availability of funds appropriated for such purpose. No provision of this Agreement shall be interpreted as or constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti -Deficiency Act, 31 U.S.C. § 1341. 10. Covenant Not to Sue by United States and Reservation. The United States hereby covenants not to sue Plaintiff for Covered Matters, except that nothing in this Settlement Agreement shall be construed as waiving or releasing the right of the United States, on behalf of either the United States Environmental Protection Agency ("EPA") or a natural resources trustee, to bring claims against Plaintiff. In the event the United States brings such a claim on behalf of EPA or a natural resource trustee, nothing in this Agreement acts as a waiver or release of any defense, counterclaim, or other claim that Plaintiff may have with regard to any such claims. 4 SETTLEMENT AGREEMENT 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 11. Effect of Settlement/Entry of Judgment. a. This Agreement was negotiated and executed by Plaintiff and the United States in good faith and at arms length and is a fair and equitable compromise of claims, which were vigorously contested. This Agreement shall not constitute or be construed as an admission of liability by the United States. Nor is it an admission or denial of any factual allegations set out in the Complaint or cross -claim or third - party claim or an admission of violation of any law, rule, regulation, or policy by any of the Settling Parties. b. Upon approval of this Agreement and entry of an Order by the Court, this Agreement shall constitute a final judgment among the Settling Parties. C. Plaintiff agrees that within 14 days of the earlier of receiving from the United States the payment provided for in this Agreement or of the Court's denial of approval of this Agreement, Plaintiff shall move the Court to dismiss with prejudice all of its claims in this Action against the United States and take whatever other steps might be necessary to effectuate dismissal of its claims against the United States in this Action. d. Plaintiff agrees to support, or at least not oppose, any motion by the United States to dismiss the claims brought against it by non -settling parties in the Action. The United States agrees to support, or at least not oppose, Plaintiff s motions to obtain the Court's approval of Plaintiff s settlements with other parties to the Action or to dismiss claims brought against Plaintiff or a party with which Plaintiff is settling by non -settling parties in the Action, so long as said motions are fair, reasonable, in the public interest, and do not prejudice the ability of the United States to bring claims on behalf of the Environmental Protection Agency or a natural resource trustee. e. Plaintiff agrees to assume responsibility for cleanup of the Property. Plaintiff agrees that should any "third party" incur "response costs" and then sue the United States for recovery of such response costs, Plaintiff shall 5 SETTLEMENT AGREEMENT 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 04A indemnify the United States against any resulting judgment. As used in this subsection, the term "response costs" shall mean costs incurred after the Effective Date of this Agreement and in connection with preparing or implementing measures to clean up or abate Hazardous Substances (as that term is defined in CERCLA) at the Property; the term "third party" shall mean any person or entity other than the United States, the EPA, a natural resource trustee or the POA. 12. Dismissal with Prejudice of Claims Against the United States. As provided in Paragraphs i 1(b) and 11(c), and except as reserved in Paragraph 10, all claims made by Plaintiff in the Action against the United States shall be dismissed with prejudice after the Plaintiff receives the payment contemplated in this Settlement Agreement. 13. Notice. All notices and other communications pertaining to this Settlement Agreement shall be in writing and shall be deemed received when delivered personally, by overnight mail, or by facsimile to the Settling Party or Parties, as the case may be, to the following address (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 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 6 SETTLEMENT AGREEMENT 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' 27 281 AS TO THE UNITED STATES Attn.: DJ490-11-6-17407 Chief Environmental Defense Section Department of Justice P.O. Box 23996 Washington, D.C. 20026-3986 Fax: (202) 514-8865 14. Representative Authority. The individuals signing this Agreement on behalf of the Settling Parties hereby certify that they are authorized to bind their respective party to this Agreement. 15. Section 1542 Waiver. In giving these releases, each Settling Party expressly waives any protection afforded by Section 1542 of the California Civil Code, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 16. Entire Settlement Agreement. This Settlement Agreement contains the entire agreement of the Settling Parties with respect to liability for contamination at, on, under, or emanating from the Property and supersedes any and all prior settlement agreements, understandings, promises, and representations made by any Settling Party to any party concerning this subject matter. 17. Executing 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 compromise but one Settlement Agreement. 7 SETTLEMENT AGREEMENT 1 2 3 I'm 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21' 22 23 24 25 pZ11 27 28 Dated: December 19 , 2005 Dated: December , 2005 f ` CITY OF HUNTINGTON BEACH, Plaintiff By: DAVE SULLIVAN, Mayor ATTEST: 0 �Ci y APPROVVD AS TO FORM: By: SCOTT F. FIELD, Assistant City Attorney SUE ELLEN WOOLDRIDGE Assistant Attorney General Environmental and Natural Resources Division MICHAEL B. HEISTER, Attorney UNITED STATES DEPARTMENT OF JUSTICE Environmental & Natural Resources Division Environmental Defense Section 8 SETTLEMENT AGREEMENT 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 JENNIFER MCGRATH, City Attorney (Bar No. CA 179917) SCOTT F. FIELD, Assistant City Attorney (Bar No. CA 105709) Box 1901 2000 Main Street Huntington Beach, California 92648 Telephone: 714 536-5555 Facsimile: (714) 374-1590 E-mail: sfield@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@frandzel.com Attorne s for Plaintiff CITY OF HUNTINGTON BEACH UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 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. HUNTINGTON BEACH POLICE OFFICERS ASSOCIATION, a California mutual benefit corporation; et al., Defendants. And Related Claims and Third Party Complaints. CASE NO. SACV 0 1- 1125 JVS (ANx) [PROPOSED) ORDER j (PROPOSED] ORDER 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 PRINTED ON ORDER UPON CONSIDERATION OF THE SETTLEMENT AGREEMENT FILED WITH THE COURT IN THIS ACTION, the Court hereby finds that this Agreement is fair and reasonable, both procedurally and substantively, consistent with applicable law, in good faith, and in the public interest. THE FOREGOING Settlement Agreement is hereby APPROVED. The United States is entitled to, as of the effective date of this Agreement, contribution protection pursuant to section 113(f) of CERCLA, 42 U.S.C. § 9613(f), the Uniform Comparative Fault Act, and any other applicable provision of federal or state law, whether by statute or common law, as to all Covered Matters, as defined in the United States and City of Huntington Beach's Settlement Agreement. All claims by the City of Huntington Beach against the United States in this Action are hereby dismissed with prejudice. There being no just reason for delay, this Court expressly directs, pursuant to Rule 54(b), Fed. R. Civ. P., ENTRY OF FINAL JUDGMENT in accordance with the terms of this Agreement, SIGNED and ENTERED this day of 20 Plaintiff and the United States shall each bear their own costs and expenses, including attorneys' fees, in this case. Dated: UNITED STATES DISTRICT JUDGE field/plead/gun range/settlement agreement 2 SETTLEMENT AGREEMENT • CITY OF HUNTINGTON BEACH Inter -Department Communication TO: JOAN FLYNN, City Clerk FROM: JENNIFER McGRATH City Attorney DATE: February 27, 2006 SUBJECT: City of Huntington Beach v. HBPOA (Gun Range Litigation) On October 17, 2005, the City Council authorized the Mayor to sign and the City Clerk to attest to a settlement in the amount of $71,200 with the State of California regarding the Huntington Beach Gun Range. Attached please find the following Settlement Agreement in the Gun Range litigation for the Mayor's signature and your signature: (1) "Settlement Agreement By and Between Plaintiff City of Huntington Beach and Defendant State of California." Also enclosed is the original agreement for your files settling the City's claim against the California Department of Fish & Game for an additional $5,747.40. Together, the State is paying the City $76,947.40. Please keep the original agreements for your files and send Assistant City Attorney Scott Field certified originals. P JINNIFER McGRATH City Attorney Attachments GAPLEAD\Gun Range\CorrespondenceNemo to Clerk re Agreements.doc CITY OF HUNTINGTON BEACH INTERDEPARTMENT COMMUNICATION TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JENNIFER McGRATH, City Attorney DATE: October 17, 2005 SUBJECT: Report of Action Taken Pursuant to Government Code Section 54957.1 October 17, 2005, City Council Closed Session On Monday, October 17, 2005, the City Council convened in closed session to discuss the matter of City of Huntington Beach v. State of California, Coast Community College District, City of Tustin, City of Stanton, et aL; Orange County Superior Court Case No. 05CCO0118; and related actions: City of Huntington Beach v. Huntington Beach Police Officers Association; U.S. District Court Case No. SA 01-1125 JVS; and Scottsdale Insurance Company v. Huntington Beach Police Officers Association, and the related counterclaim, American States Insurance v. City of Huntington Beach, United States District Court Case No. SA 03-1143 JVS. Council voted to authorize the following actions: The Mayor to sign and the City Clerk to attest to a settlement in the amount of $71,200 with the State of California regarding the Huntington Beach Gun Range. 2. In exchange for the payment to the City, the City will: (a) Dismiss with prejudice its suit against the State. (b) Defend and indemnify the State and hold it harmless against any claims arising out of its use of the Gun Range. (c) Apply with the State for Court approval of the settlement agreement. If granted, Court approval would bar anyone (including the POA) from suing the User regarding the cost of cleaning up the Gun Range. If the Court denies the application, the settlement requires the City to defend the State against any third -party claims. The Council voted as follows: 7 Ayes; 0 Noes; 0 Abstentions. NIFER McGRATH j City Attorney cc: Penelope Culbreth-Graft, City Administrator Joan Flynn, City Clerk Closed/05Report/St. of Calif. GUN RANGE /ab 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 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(- surfcit.-h�b.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 dflamgfrandzel.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. CASE NO. 05CC00118 [Case Assigned to Judge Ronald L. Sauer, Dept. CX103] SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF HUNTINGTON BEACH AND THE DEPARTMENT OF FISH & GAME OF DEFENDANT STATE OF CALIFORNIA STATE OF CALIFORNIA, COAST [PROPOSED] ORDER AND COMMUNITY COLLEGE DISTRICT, JUDGMENT CITY OF TUSTIN, CITY OF STANTON AND DOES 1 TO 100, Defendants. Page 1 of 22 SETTLEMENT AGREEMENT 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 the Department of Fish & Game of Defendant, State of California (the "Department" 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"), which is generally depicted on the map attached as Exhibit A; 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, the POA named the State of California (the "State") as a third party defendant in the Related Action. Later, on December 14, 2004, the City filed its Third Amended Complaint in the Related Action, adding as Defendants various persons and entities that regularly conducted firearms training at the Gun Range. However, previously, the State had successfully moved to dismiss pursuant to the Page 2 of 22 T T 1 Eleventh Amendment of the United States Constitution. Consequently, the City filed 2 this Action in State Court against the State of California, the Coast Community 3 College District, the City of Stanton and the City of Tustin (collectively, 4 "Defendants" ); _ _ 5 WHEREAS, the Defendants have generally denied the substantive claims and 6 allegations in the Action and further denied any use or significant use of the Property, 7 and contended that any use was an invited use; 8 WHEREAS, City alleges (reference to these allegations in this Agreement 9 shall not be construed as an adoption or admission by the Settling Defendant) as 10 follows: 11 1. During the POA's ownership and operation of the Gun Range, the POA 12 allowed thousands of peace officers from numerous law enforcement agencies 13 to discharge between 500,000 to 1,000,000 rounds of lead ammunition per year 14 at the Property. As part of its range maintenance program, the POA attempted 15 to mine and recover the numerous spent ammunition rounds, slugs, and/or shell casings by sifting the soil on the Property and recovering spent bullets for 16 recycling. However, smaller fragments, shards, particles and dust that resulted 17 from bullets exploding at the range on impact were too small to be recovered 18 by the POA's mining and recovery procedures. 19 2. During the Defendants' use of the Property, hazardous substances and 20 materials were released on the Property, causing contamination of the soil and 21 groundwater. Further, as a proximate result of the Defendants' use of the 22 Property, the City has incurred and will continue to incur response costs 23 regarding the Property. 24 3. The City has incurred costs and damages in connection with the 25 investigation and cleanup of various hazardous substances (as defined in 26 Section III below, hereafter "Hazardous Substances") at the Property. The 27 City will incur additional costs and damages in the future on account of the 28 Hazardous Substances at the Property. Pursuant to the HSAA and various Page 3 of 22 SETTLEMENT AGREEMENT 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 common law theories, the City is entitled to recover its response costs and damages, and to obtain injunctive relief to compel Defendants to remediate the Property. 4. 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 necessary steps to remediate it and report the contamination to the Orange County Health Care Agency ("OCHCA"). 5. 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, which confirm that the soil at the Property is heavily contaminated with lead. The lead contamination is classified as "Hazardous Substances" under HSAA. 6. 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"). 7. 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"). Page 4 of 22 SETTLEMENT AGREEMENT f 1 2 3 4 5 6 7 81 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. 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. 9. 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: l . 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. 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 Page 5 of 22 SETTLEMENT AGREEMENT 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 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, there have been various initial disclosures, supplemental initial disclosures, and responses to public records requests. Based upon these disclosures, various Departments and Agencies of the State of California entered into a single Settlement Agreement resulting in a payment to the City of $71,220.00. Separate from the Agreement releasing the State of California, the Settling Parties have entered into this Agreement. The Settling Defendant has disclosed that, apart from the other Departments and Agencies of the State of California, employees of the Department of Fish & Game of the State of Page 6 of 22 SETTLEMENT AGREEMENT I 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 California that used the Range are estimated to have fired a total of 47,895 rounds over the lifetime of the Range, as set forth in Exhibit A, attached hereto; WHEREAS, the settlement terms as reflected in this Settlement Agreement have been reached by the City of Huntington Beach and the Department of Fish & Game of the State of California; 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, based upon the estimated cost of $3,000,000 to remediate the Property, and the estimated number of rounds fired at the Gun Range over its lifetime of 25,000,000 rounds, the estimated cost of cleanup is $0.12 per round. Multiplying this figure by the estimated 47,895 rounds fired by the employees of the Department of Fish & Game that used the Range amounts to the settlement payment of $5,747.40; 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; 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 Page 7 of 22 SETTLEMENT AGREEMENT 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 waive any and all objections and defenses they may have to the jurisdiction of the Court, to venue, or to service of process. II. 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 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 Substances. IV. SETTLEMENT PAYMENT A. Amounts. Subject to and consistent with the terms and provisions of this Agreement, the Settling Defendant shall pay Five Thousand Seven Hundred Forty -Seven Dollars and Forty Cents ($5,747.40) to the City of Huntington Beach. Exhibit A to this Agreement allocates this payment of $5,747.40 to the Department of Fish & Game. B. Payment. The Settling Defendant shall deliver its settlement payment to counsel for the Plaintiff at counsel's address listed in Section XI Subsection G (Notice), within 1) fifty (50) business days after both of the following has occurred: 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) ten (10) business days after this Agreement is so executed and a dismissal with Page 8 of 22 SETTLEMENT AGREEMENT 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 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 Settling Parties hereby agree that 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, all claims asserted, or which could have been asserted, by the Settling Defendant against each other party in the Action for which there is a comparable dismissal of that party's claims against the Settling Defendant. B. Dismissal of the Action As To State. 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. Page 9 of 22 SETTLEMENT AGREEMENT 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 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 in the declaration referred to at Section VIA, and except for claims expressly or 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, and the City further releases the Settling Defendant's insurers) 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 comparable release of that party's claims against the Settling Defendant. 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, Page 10 of 22 SETTLEMENT AGREEMENT 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 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.C. as to each other party to the Action and to the Related Action for which there is a comparable 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, 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 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 Page I I of 22 SETTLEMENT AGREEMENT 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 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 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 B as a condition precedent to the obligations of the Settling Defendant under Section IV 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 their respective counsel shall join in, a mutually acceptable joint motion or other appropriate legal proceeding(s) as may be necessary or appropriate to secure the Page 12 of 22 SETTLEMENT AGREEMENT 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 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 Courf 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, alid 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 Page 13 of 22 SETTLEMENT AGREEMENT 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 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. If the modified Order and Judgment is reversed on appeal, this Settlement Agreement does not require the Settling Party to pursue further modifications to the Settlement Agreement and/or the Order and Judgment. 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 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 complaint in the Action as to 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, but not be limited to, Page 14 of 22 SETTLEMENT AGREEMENT 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 by or that may be asserted by the POA against the Settling Defendant. 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, 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, 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 atiy 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. Initials of 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: l . In any proceeding where 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 Settling Defendant in Page 15 of 22 SETTLEMENT AGREEMENT I connection with attending the deposition or assisting Designated Counsel in 2 the preparation of necessary declarations or responses to written discovery 3 shall not be charged to Designated Counsel. To the extent allowed by law, 4 Designated Counsel shall seek reimbursement of Settling Defendant's internal 5 costs and expenses, including costs associated with attending oral depositions 6 and assisting with and providing responses to written discovery. 7 2. To the extent they exist, can be located and are in the Settling 8 Defendant's possession, the Settling Defendant shall cooperate with 9 Designated Counsel in locating and identifying documents that relate to 10 firearms training at the Property and provide hard copies to Designated 11 Counsel. To the extent allowed by law, Designated Counsel shall seek 12 reimbursement of the Settling Defendant's costs and expenses from the person 13 or entity, other than Designated Counsel, requesting the documents. To the 14 extent possible, the hard copies will be provided within 30 days after the 15 request is received from Designated Counsel. 16 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 17 not limited to personnel time and expense, incidental transportation, parking, 18 telephone, fax and mailing costs, which funds shall not be reimbursed by the 19 City. 20 VIII. APPEAL 21 A. Reversal Of Order And Appeal. If the Court approves the 22 Settlement Agreement through entry of the contemplated Order (including a modified 23 version of the Order) and the Order is appealed, the Settling Defendant agrees to 24 cooperate with the City in defending the Order, at City's expense, through a final 25 judgment in the California Court of Appeal and Ninth Circuit Court of Appeals. 26 Nothing in this Settlement Agreement shall require the Settling Defendant to meet 27 and confer to modify or submit to the Court a modified Settlement Agreement and/or 28 Order in the event of an appeal and/or reversal of the Order. If an appeal is Page 16 of 22 SETTLEMENT AGREEMENT 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 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 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 United States 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 both of the following occur: (1) the execution of the Settlement Agreement by the City, and (2) the execution of the Settlement Agreement by the Settling Defendant. 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 Settling Parties cannot resolve among themselves, such dispute shall be heard and resolved by the Court. XI. ADDITIONAL TERMS A. Representations of Non-Assignment/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. Page 17 of 22 SETTLEMENT AGREEMENT I I It 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 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 fraud exception described in Paragraph VC, 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 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 Page 18 of 22 SETTLEMENT AGREEMENT 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 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 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 Page 19 of 22 SETTLEMENT AGREEMENT . i i 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 AS TO THE DEPARTMENT OF FISH & GAME OF THE STATE OF CALIFORNIA Office of the Attorney General Department of Justice , 300 South Spring Street, 7 South Los Angeles CA 90013 (213) 897-8644 Fax: (213) 897-2810 With Copy To: David Adida, Deputy Attorney General Office of the Attorney General 300 S. Spring Street, 7 South Los Angeles, CA 90013 Fax: (213) 897-2810 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 have had the opportunity to discuss this Agreement with Page 20 of 22 SETTLEMENT AGREEMENT I � 4 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 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: e h. L 7 , 2006 "CITY OF HUNTINGTON BEACH, Plaintiff By: PENELOPE CULBRETH-GRAFT City Administrator APPROVED AS TO FORM: By: SCOTT F. FIELD, Assistant City Attorney Page 21 of 22 SETTLEMENT AGREEMENT 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: 2 Z 2 , 2006 Dated: , 2004� CA IFORN A DEPARTMENT OF FISH & GAME Defendant By Its Representative: ... "ii10I� Lek, OA By: " ` ` `.1 DAVI ADIDA, Deputy County Counsel STATE OF CALIFORNIA Page 22 of 22 SETTLEMENT AGREEMENT 1 2 3 4 G 6' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 PJa 23 24 25 26 27 28 EXHIBIT A STATE AGENCY - ROUNDS FIRED MULTIPLIED BY 12 CENTS California Department of Fish & Game _ 4705 $51747.40 1 0 1 ) C 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 B 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(absurfcity-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 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 THE COURT HAS CONSIDERED THE FOREGOING Settlement Agreement by and between Plaintiff, City of Huntington Beach ("City") and the Department of Fish & Game of Defendant, the State of California (the "Settling 1 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 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 the Department of Fish & Game of Defendant State of California 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 applicable law, including without limitation California Code of Civil Procedure Sections 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 2 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 Property, (3) statutory 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 comparable 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. IT IS SO ORDERED AND JUDGMENT IS SO ENTERED. Dated: Orange County Superior Court Judge 3 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 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 - 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: hgo dflamAfrandzel.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 o California, Plaintiff, VS. STATE OF CALIFORNIA, COAST COMMUNITY COLLEGE DISTRICT, CITY OF TUSTIN, CITY OF STANTON AND DOES 1 TO 100, Defendants. CASE NO. 05CC00118 (Case Assigned to Judge Ronald L. Bauer, Dept. CX103] SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF HUNTINGTON BEACH AND DEFENDANT STATE OF CALIFORNIA [PROPOSED] ORDER AND JUDGMENT PRINTED ON plead/gun range/settlement agreement/State of CA SETTLEMENT AGREEMENT 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 PRINTED ON THIS SETTLEMENT AGREEMENT AND RELEASE is entered into by and between the Plaintiff, City of Huntington Beach ("City") and Defendant, State of California (the "State" 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"), which is generally depicted on the map attached as Exhibit A; 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, the POA named the State as a third party defendant in the Related Action. Later, on December 14, 2004, the City filed its Third Amended Complaint in the Related Action, adding as Defendants various persons and entities that regularly conducted firearms training at the Gun Range. However, previously, the State had successfully moved to dismiss pursuant to the Eleventh Amendment of the United plead/gun range/settlement agreement/State of CA 2 of 27 SETTLEMENT AGREEMENT 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 States Constitution. Consequently, the City filed this Action in State Court against the State of California, the Coast Community College District, the City of Stanton and the City of Tustin (collectively, "Defendants"); WHEREAS, the Defendants have 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. As part of its range maintenance program, the POA attempted to mine and recover the numerous 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. 2. During the Defendants' 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 Defendants' use of the Property, the City has incurred and will continue to incur response costs regarding the Property. 3. 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 HSAA and various common law theories, the City is entitled to recover its response costs and Page 3 of 27 SETTLEMENT AGREEMENT 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 damages, and to obtain injunctive relief to compel Defendants to remediate the Property. 4. 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 necessary steps to remediate it and report the contamination to the Orange County Health Care Agency ("OCHCA"). 5. 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, which confirm that the soil at the Property is heavily contaminated with lead. The lead contamination is classified as "Hazardous Substances" under HSAA. 6. 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") 7. 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"). 8. The City submitted the RAP to the California Department of Toxic Substances Control ("DTSC"), who recommended that the City perform a Page 4 of 27 SETTLEMENT AGREEMENT 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 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. 9. 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. 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. Page 5 of 27 SETTLEMENT AGREEMENT 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 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, there have been various initial disclosures, supplemental initial disclosures, and responses to public records requests. Based upon these disclosures, it has been estimated that employees of the various departments of the State of California that used the Range fired a total of 593,000 rounds over the lifetime of the Range, as set forth in Exhibit A-1, attached hereto; WHEREAS, the settlement terms as reflected in this Settlement Agreement have been reached by the City of Huntington Beach and the State of California; 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 Page 6 of 27 SETTLEMENT AGREEMENT 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 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, based upon the estimated cost of $3,000,000 to remediate the Property, and the estimated number of rounds fired at the Gun Range over its lifetime of 25,000,000 rounds, the estimated cost of cleanup is $0.12 per round. Multiplying this figure by the estimated 593,000 rounds fired by the employees of the State of California that used the Range amounts to the settlement payment of $71,200; 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; 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. II. 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. Page 7 of 27 SETTLEMENT AGREEMENT 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 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 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 Substances. IV. SETTLEMENT PAYMENT A. Amounts. Subject to and consistent with the terms and provisions of this Agreement, the Settling Defendant shall pay Seventy -One Thousand Two Hundred Twenty Dollars ($71,220.00) to the City of Huntington Beach. Exhibit A-1 to this Agreement allocates this payment of $71,200 to each department of the State of California whose employees used the Range. B. Payment. The Settling Defendant shall deliver its settlement payment to counsel for the Plaintiff at counsel's address listed in Section XI Subsection G (Notice), within 1) fifty (50) business days after both of the following has occurred: 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) ten (10) 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 Settling Parties hereby agree that 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 Page 8 of 27 SETTLEMENT AGREEMENT 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 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, all claims asserted, or which could have been asserted, by the Settling Defendant against each other party in the Action for which there is a comparable dismissal of that party's claims against the Settling Defendant. B. Dismissal of the Action As To State. 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 claims arising from alleged breaches of this Section and Sections X, XIA and XIB of this Settlement Agreement, or fraud in the declaration referred to at Section VIA, and except for claims expressly or 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, and the City further releases the Settling Defendant's insurers) 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 Page 9 of 27 SETTLEMENT AGREEMENT 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 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 comparable release of that party's claims against the Settling Defendant. 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.C. as to each other party to the Action and to the Related Action for which there is a comparable 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 Page 10 of 27SETTLEMENT AGREEMENT 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 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, 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 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. 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 Page 11 of 27SETTLEMENT AGREEMENT 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 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 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 B as a condition precedent to the obligations of the Settling Defendant under Section IV 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 their respective counsel shall join in, a mutually acceptable joint motion or other appropriate legal proceeding(s) as may be 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 Page 12 of 27SETTLEMENT AGREEMENT 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 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. If the modified Order and Judgment is reversed on appeal, this Settlement Agreement does not require the Settling Party to pursue further modifications to the Settlement Agreement and/or the Order and Judgment. 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 Page 13 of 27SETTLEMENT AGREEMENT 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 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 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 complaint in the Action as to 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, but not be limited to, all claims asserted by or that may be asserted by the POA against the Settling Defendant. 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, 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, indemnify and hold the Settling Defendant harmless, the same counsel that Page 14 of 27SETTLEMENT AGREEMENT 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 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. Initials of 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 Page 15 of 27SETTLEMENT AGREEMENT 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 to Designated Counsel as follows: l . In any proceeding where 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 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, Page 16 of 27SETTLEMENT AGREEMENT 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 telephone, fax and mailing costs, which funds shall not be reimbursed by the City. VIII. APPEAL A. Reversal Of Order And 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 and Ninth Circuit Court of Appeals. 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 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 United States 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 both of the following occur: (1) the execution of the Settlement Agreement by the City, and (2) the execution of the Settlement Agreement by the Settling Defendant. 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, Page 17 of 27SETTLEMENT AGREEMENT 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 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 Settling Parties cannot resolve among themselves, such dispute shall be heard and resolved by the Court. XI. ADDITIONAL TERMS A. Representations of Non-Assignment/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 fraud exception described in Paragraph VC, 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 Page 18 of 27SETTLEMENT AGREEMENT 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 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 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 Page 19 of 27SETTLEMENT AGREEMENT 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 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 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 STATE OF CALIFORNIA Office of the Attorney General Department of Justice 300 South Spring Street, 7 South Los Angeles CA 90013 (213) 897-8644 Fax: (213) 897-2810 With Copy To: David Adida, Deputy Attorney General Office of the Attorney General 300 S. Spring Street, 7 South Los Angeles, CA 90013 Fax: (213) 897-2810 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. Page 20 of 27SETTLEMENT AGREEMENT 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 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 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 Page 21 of 27SETTLEMENT AGREEMENT 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 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: March 92006 Dated: October , 2005 Dated: October - , 2005 0� CITY OF HUNTINGTON BEACH, Plaintiff By: DAVID SULLIVAN, Mayor ATTEST: By. - JO FLNNN, City 1drk APPROVED AS TO FORM: By: SCOTT F. FIELD, Assistant City Attorney CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION INCLUDING CALIFORNIA YOUTH AUTHORITY Defendant By Its Representative: CALIFORNIA HIGHWAY PATROL Defendant By Its Representative: Page 22 of 27 SETTLEMENT AGREEMENT DEC.21.2005 3.08P V, DMIN CONf1DENTIAL�,�d anp�aasaideg SIT Rg iuvpuajaQ 7OUrxa xVMHOM VModIlVO :aa saYdag 911 19% 1UR3sQ NOILVJIIIt SMOLLOMOD 30 Uowmxvd (I vmoiilvo :Ag MOM 01 Sd MAMd" *0I0 4!O `NrIx'i31 yof :,kg :, smv i,'w :Ag j3pupid `HOH3g NO.LDM LMH 30 A110 NU. h)9 r, SOoz r—-aq=AoN :papa SOOT `%� �t�apQ SOOZ Iagopo :P;n'sQ '10'aija Pgai s;t puz Immaaa v lu migas smio ft.maua oq� o; padsai tp!.&L jasanoo l2al Aq pastnps uaoq oAvq rGatp wyp pm `immas$y ;uazuapuag srq� o 8tp2Ys atp ox Smpeal mr ppgau aqtjo asrnoo arp gurmp 8Z LZ 9Z SZ trZ Ez zz tz OZ 61 81 8 L 9 S Z I 6Z/EZ 39VJ V-10 9696-ZZE-916 6Z:ST S00Z/TZ/ZT 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 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: October , 2005 CITY OF HUNTINGTON BEACH, Plaintiff By: , ATTEST: By: JOAN FLYNN, City Clerk APPROVED AS TO FORM: By. SCOTT F. FIELD, Assistant City Attorney Dated: October , 2005 ' V "j Dated: =erJ , 2005 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION INCLUDING CALIFORNIA YOUTH AUTHORITY Defendant By Its Representative: HIGHWAY PA Its Representative: (o Ll� lrNl / L r�ow-4 S . " Page 21 of 26SETTLEMENT AGREEMENT DEC-13-2005 14:06 ATTY GENERAL DOJ 213 897 2810 P.07 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 28 Dated: November 52005 Dated: November 2005 Dated: November ' , 2005 Dated: Noveinber , 2005 DE ARTMENT OF PARKS AND RECREATION Defendant By Its Representative: wth colem, p•J.xsctor Department cf parks =a Recreation THE BOARD OF TRUSTEES OF THE CALIFORNIA STATt TUNl VERSITY' Defendant By Its Representative: DEPARTMENYOF ALCOHOLIC BEVERAGE CONTROL Defendant By Its Representative: CALIFORNIA HORSE RACING BOARD Defendant: By Its Representative: .CALIFOMA DEPARTMENT OF JUSTICE, DIVISION OF LAW ENFORCEMENT Defendant By Its Representative: �. Page 23 of 27SET LEMENT AGTtERMTNT f 10/29/2005 14:11 e-v U, J ac: LON ti 56ja 5etj 59 C GENERALSU & Mask Mgmt. CS U5COUNSEL 62 885 2411 PAGE 02/02 p.2 i 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: October .2005 Dated: October Zt 2005 Dated: October_, 2005 Dated: Octoberr , 2005 Dated: October-------, 2005 DEPARTMENT OF PASS AND RECRLAIJON Defendant By Its Representative: r � CALIFORNIA STATE UNIVERSITY Defendant BBy Its Repentative: R DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL Defendant By Its Representative: CALIFORNIA .HORSE RACING BOARD Defendant By Its Representative: CALIFORNIA DEPARTMENT OF LAW ENFORCEMENT Defendant By Its Representative: Page 22 of 26Sr• TLENIENT AGREENIENT 2 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: October , 2005 Dated: October , 2005 Dated: 4e+eber 4 , 2005 W"OJ060— Dated: October , 2005 Dated: October , 2005 DEPARTMENT OF PARKS AND RECREATION Defendant By Its Representative: CALIFORNIA STATE UNIVERSITY Defendant By Its Representative: DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL Defendant By Its Representative:., yh,..�t. CALIFORNIA HORSE RACING BOARD Defendant By Its Representative: CALIFORNIA DEPARTMENT OF LAW ENFORCEMENT Defendant By Its Representative: Page 22 of 26SETTLEMENT AGREEMENT 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: October , 2005 Dated: October , 2005 Dated: October , 2005 Dated: October , 2005 Dated: October , 2005 DEPARTMENT OF PARKS AND RECREATION Defendant By Its Representative: CALIFORNIA STATE UNIVERSITY Defendant By Its Representative: DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL Defendant By Its Representative: CALIFORNIA HORSE RACING BOARD CALIFORNIA DEPARTMENT OF LAW ENFORCEMENT Defendant By Its Representative: Page 22 of 26SETTLEMENT AGREEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: November 312005 Dated: November , 2005 Dated: November , 2005 Dated: November , 2005 Dated: November 1 2005 DEPARTMENT OF PARKS AND RECREATION Defendant By Its Representative: THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY Defendant By Its Representative: DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL Defendant By Its Representative: CALIFORNIA HORSE RACING BOARD Defendant By Its Representative: CALIFORNIA DEPARTMENT OF JUSTICE, DIVISION OF LAW ENFORCEMENT Defendant By Its Representative: PauP �?. of ?ASETTLEMENT AGREEMENT DEC.21.2005 3:39PM STATE LOTTERY LEGAL a . 487---P .2 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: Noy4mbcr ct/ , 2005 Dated: November , 2005 Dated: November 92005 CALIFORNIA LOTTERY Defendant ' By Its Representative: s0,47�r_1c,,A zgjF e� DEPARTMENT OF CONSUMER AFFAIRS AND ITS CONSTITUENT BOARDS Defendant By Its Representative: APPROVED AS TO FORM: By: DAVID ADIDA, Deputy Attorney General, on behalf of all above State Agencies Page 24 of 27SETTLEMENT AGREEMENT NOV-16-2005 09:08 LEGAL AFFAIRS P•002 I 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: November , 2005 Dated: November I,- 2005 Dated: November 2005 CALIFORNIA LOTTERY Defendant By Its Representative: DEPARTMENT OF CONSUMER AFFAIRS AND ITS CONSTITUENT BOARDS Defendant By Its Representative APP�OVEgJ JS�TO FORM: By.x IVV t �1 DA ADIDA, Deputy Attorney General, on ehalf of all above State Agencies Page 23 of 26SETTLEMENT AGREEMENT TOTAL P.002 1 2 3 H 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 0#4 0411 0iz! 25 26 27 28 PRINTED ON EXHIBIT A-1 STATE AGENCY ROUNDS FIRED MULTIPLIED BY 12 CENTS California Department of Corrections and Rehabilitation, including California Youth Authority 41,600 $41,992 California Highway Patrol 125,000 $15,000 Department of Parks and Recreation 212,000 $25,440 California State University 411,000 $41,920 Department of Alcoholic Beverage Control 60,000 $7,200 California Horse Racing Board 65,500 $780 California Department of Law Enforcement 65,000 $7,800 California Lottery 24,000 $200 Department of Consumer Affairs including Dental and Medical Boards 18,400 $2,208 Total 593,500 $71,220 plead/gun range/settlement agreement/State of CA EXHIBIT A-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 B 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: h o dflam ,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 Lcase Assigned to Judge Ronald L. 13auer, Dept. CX103] JPROPOSED] ORDER AND UDGMENT THE COURT HAS CONSIDERED THE FOREGOING Settlement Agreement by and between Plaintiff, City of Huntington Beach ("City") and Page 25 of 27 SETTLEMENT AGREEMENT 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 Defendant, the State of California (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: 1. The Motion to Approve the Settlement Agreement By and Between Plaintiff City of Huntington Beach and Defendant State of California 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. 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 Page 26 Of 27 SETTLEMENT AGREEMENT 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 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 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 comparable 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. IT IS SO ORDERED AND JUDGMENT IS SO ENTERED. Dated: Orange County Superior Court Judge Page 27 of 27 SETTLEMENT AGREEMENT CITY OF HUNTINGTON BEACH Inter -Department Communication TO: JOAN FLYNN, City Clerk FROM: JENNIFER McGRATH, City Attorney DATE: February 28, 2006 SUBJECT: City of Huntington Beach v. HBPOA Attached please find original, fully executed Settlement Agreements with the City of Huntington Beach in the Gun Range litigation with the request you keep these Agreements on file in your office. (1) City of Bell (2) City of Buena Park j(3) Cities of Costa Mesa, Cypress, Fountain Valley, Irvine, Orange and Westminster (4) City of Gardena (5) City of Huntington Park (6) City of La Palma (7) City of Manhattan Beach I' (8) City of Santa Ana (9) Santa Ana Unified School District (10) Silverado Sportsman's Club (11) United States of America (12) Westec Security, Inc., et al. (13) Yavapai Firearms Academy Ltd. JENNIFER McGRATH City Attorney Attachments G:\PLEAD\Gun Range\CorrespondenceNemo to Clerk 1-3-06.doc ATTACHMENT #1 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 PRINTED ON JENNIFER MCGRATH, City Attorney (Bar No. CA 179917 SCOTT F. FIELD, Assistant City Attorney (Bar No. CA 105 09) Box 190, 2000 Main Street Huntington Beach, California 92648 Telephone: 714 536-5555 Facsimile: (714) 374-1590 E-mail: sfield@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: hgo dflam@frandzel.com Attorne s for Plaintiff CITY OF HUNTINGTON BEACH UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 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. HUNTINGTON BEACH POLICE OFFICERS ASSOCIATION, a California mutual benefit corporation; et al., Defendants. And Related Claims and Third Party Complaints. CASE NO. SACV 01-1125 JVS (ANx) SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF HUNTINGTON BEACH AND DEFENDANT THE CITY OF BELL [PROPOSED] ORDER AND JUDGMENT field/plead/gan range/settlement agreement SETTLEMENT AGREEMENT 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, the City of Bell (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, 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- 1125 JVS (Anx) (the "Action") in which it seeks contribution and other relief arising under the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., the California Hazardous Substance Account Act ("HSAA"), Calif. Health & Safety Code § 25300 et seq., as well as breach of contract, nuisance, trespass, waste, negligence, contribution, and indemnity; 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 deeded by Defendant County of Orange to the City in 1963, and that from 1968 to 1997, the Property was leased from the City by Defendant Huntington Beach Police Officer's Association (the "POA") for the purpose of operating and maintaining a gun range on the site (the "Gun Range"), which is generally depicted in the map attached as Exhibit A; City; WHEREAS, the POA has answered and asserted counter -claims against the WHEREAS, in July 2004, the POA applied to the Court and was granted leave to join as Third Party Defendants various entities that previously used the Gun Range for firearms training, including the Settling Defendant. Then on December 2, 2004, the City was granted leave to directly sue these same entities and additional persons as defendants. On December 14, 2004, the City filed its Third Amended Complaint 2 SETTLEMENT AGREEMENT 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 ("TAC") adding as Defendants: United States of America; County of Orange; City of Bell; City of Buena Park; City of Costa Mesa; City of Cypress; City of Fountain Valley; City of Gardena; City of Garden Grove; City of Huntington Park; City of La Palma; City of Manhattan Beach; City of Orange; City of Irvine; City of Santa Ana; City of Westminster; Santa Ana Unified School District; Dean's Security Professionals; Competitive Edge; Silverado Sportsman Club; Singleton International; The Centurion Group; Yavapai Firearms Academy, Ltd.; and Westec Security, Inc. (collectively, "Shooters"); WHEREAS, the Shooters have generally denied the substantive claims and allegations in the TAC and in the related counter -claims, cross -claims, third party claims, 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: l . During the POA's ownership and operation of the Gun Range, the POA allowed approximately 12,000 peace officers from no less than seventy (70) law enforcement agencies to discharge an estimated one million rounds of lead ammunition per year at the Property. As part of its range maintenance program, the POA attempted to mine and recover the numerous spent ammunition rounds, slugs, and/or shell casings by sifting the soil on the site and recovering spent bullets for recycling, and that this screening procedure recovered .38 caliber bullets, and perhaps smaller 9-mm bullets. 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. 2. During the POA's tenancy and the POA's and 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 3 SETTLEMENT AGREEMENT 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 result of the POA's and Shooters' activities on the Property, the City has incurred and will continue to incur response costs regarding the Property. 3. 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. The City is entitled to recover those costs and damages pursuant to the combined operation of CERCLA, HSAA and various common law theories. The City is entitled to injunctive relief to compel Defendants to remediate the Property pursuant to RCRA and various common law theories. 4. Since the POA vacated the Property 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 necessary steps to remediate it and report the contamination to the Orange County Health Care Agency ("OCHCA"). 5. 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, which confirm that the soil at the Property is heavily contaminated with lead. The lead contamination is classified as a "hazardous waste" under RCRA and as "hazardous substances" under CERLCA and HSAA. 6. As a result of the contamination, the environmental assessment, cleanup, and remediation of the Property are being directed and overseen by OCHCA. 4 SETTLEMENT AGREEMENT I 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 The City has obtained from OCHCA an approved Remedial Action Plan ("RAP") 7. 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"). If the California Department of Toxic Substances Control ("DTSC") and/or Santa Ana Regional Water Quality Control Board impose a more restrictive cleanup based upon a health risk assessment or other criteria, 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. 8. 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. At the recommendation of DTSC, the City will prepare a risk assessment analysis, which may cause revision of the RAP. The cost of 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 TAC or the POA's First Amended Cross -Claims and Third - Party Claims (the "FAC") 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. 5 SETTLEMENT AGREEMENT 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. The Settling Defendant is neither an owner, operator, nor arranger, as those terms are defined under the environmental laws, including RCRA, CERCLA, and HSAA, and its activities on the Property, if any, do not constitute the disposal or 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); 6 SETTLEMENT AGREEMENT 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, 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 City of Bell; 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 B, 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 United States District Court for the Central District of California (Hon. James V. Selna presiding) (the "Court") has jurisdiction over the Settling Parties and jurisdiction over the subject matter of the Action pursuant to CERCLA Section 113(b) (42 U.S.C. § 9613(b)), and 28 U.S.C. §§ 1331 and 1367(a). 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 in this District, or to service of process. % SETTLEMENT AGREEMENT 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 II. 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 hazardous substances and hazardous waste as those terms are used in the 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 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 in other statutory or decisional environmental law, as heretofore or hereafter amended. IV. SETTLEMENT PAYMENT A. Amounts. Subject to and consistent with the terms and provisions of this Agreement, the Settling Defendant shall pay Fifteen Thousand Dollars ($15,000.00) 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 Subsection G (Notice), within 1) fifty (50) business days after both of the following has occurred: 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) ten (10) 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." 8 SETTLEMENT AGREEMENT 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 V. DISMISSAL AND RELEASE A. Dismissal of the Entire Action. The Settling Parties hereby agree that 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, all claims asserted, or which could have been asserted, by the Settling Defendant against each other party in the Action for which there is a comparable dismissal of that party's claims against the Settling Defendant. B. Dismissal of the TAC. 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 TAC in favor of 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 claims arising from alleged breaches of this Section and Sections X, XIA and XIB of this Settlement Agreement, or fraud in the declaration referred to at Section VIA, and except for claims expressly or preserved in this Settlement Agreement, the Parties hereby release each other (and each of their agents, officers, directors, elected officials, appointed officials, 9 SETTLEMENT AGREEMENT 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 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 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. 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.C. as to each other party to the Action for which there is a comparable 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 10 SETTLEMENT AGREEMENT 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 against any non -settling person or entity, whether a party in the 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, 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. 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 11 SETTLEMENT AGREEMENT 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 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 and CERCLA Section 113(f), 42 U.S.C. § 9613(f)(2), 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 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 B as a condition precedent to the obligations of the Settling Defendant under Section IV 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 their respective counsel shall join in, a mutually acceptable joint motion or other appropriate legal proceeding(s) as may be 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, 12 SETTLEMENT AGREEMENT 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 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 TAC in favor of 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. If the modified Order and Judgment is reversed on 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. 13 SETTLEMENT AGREEMENT 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 C. Dismissal With Preiudice 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 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, but not be limited to, all claims asserted by or that may be asserted by the POA against the Settling Defendant. 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, VII and VIII. The City shall defend the Settling Defendant 14 SETTLEMENT AGREEMENT 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 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 interests adverse to a Up nt or former client with the informed written consent of the client. Initials of 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: In any proceeding where 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 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 15 SETTLEMENT AGREEMENT 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 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. VIII. APPEAL A. Reversal Of Order And 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 Ninth Circuit 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 TAC 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 arises at the time of entry of the Order (including a modified version of the Order) and continues 16 SETTLEMENT AGREEMENT I thereafter, regardless of whether any appeal or challenge to the Order is undertaken or 2 whether the Order is reversed on appeal. 3 Nothing in this Settlement Agreement shall require or preclude the Settling 4 Party's defense of the Order in the United States Supreme Court. 5 IX. EFFECTIVE DATE OF SETTLEMENT 6 This Settlement Agreement shall become binding and effective on the City and 7 the Settling Defendant upon the "Effective Date," which is the date by which both of 8 the following occur: (1) the execution of the Settlement Agreement by the City, and 9 (2) the execution of the Settlement Agreement by the Settling Defendant. 10 X. CONTINUING JURISDICTION 11 The Settling Parties agree that the Court specifically retains jurisdiction over 12 the subject matter of this Action and the Settling Parties for the purpose of (1) 13 resolving any disputes arising under this Settlement Agreement, (2) issuing such 14 further orders or directions as may be necessary or appropriate to construe, 15 1 implement, modify, or enforce the terms of this Settlement Agreement, and/or the 16 1 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 17 Settlement Agreement or performance of the obligations arising from this Settlement 18 Agreement which the disputing Settling Parties cannot resolve among themselves, 19 such dispute shall be heard and resolved by the Court. 20 XI. ADDITIONAL TERMS 21 A. Representations of Non-Assignment/Transfer. The Settling Parties 22 represent and warrant that they have not assigned or otherwise transferred any claim, 23 cause of action, or other right which has been released in this Settlement Agreement. 24 The Settling Parties agree to hold each other harmless, and to indemnify each other 25 from and against any claim made by any person or entity who purports to be the 26 recipient of an assignment or other transfer of any claim, cause of action or right by 27 the Settling Parties in connection with the Action or the incident which gave rise to 28 the Action. 17 SETTLEMENT AGREEMENT 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 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 fraud exception described in Paragraph VC, 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 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 18 SETTLEMENT AGREEMENT 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 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 I 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 (currently City's TAC) 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 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 19 SETTLEMENT AGREEMENT 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 AS TO THE CITY OF BELL Bell City Clerk City of Bell 6330 Pine Ave Bell, CA 90201-1291 With Copy To: Thomas C. Sites, Esq. Trina Saunders, Esq. Gallagher & Gallagher 1925 Century Park East, Suite 950 Los Angeles, CA 90067 Facsimile: (310) 203-2610 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 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. 20 SETTLEMENT AGREEMENT 1 2 3 4 5 10 11 12 13 14 15 16 17 18 19 20' 21 23 24 25 26 27 28 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 be 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: DecpmhPr 19 ,2005 CITY Ot HUN GTON BEACH, Plaintiff By: PENELOPE CULBRETH-GRAFT, City Administrator APPROVED AS TO FORM: By: �r SCOTT F. FIELD, Assistant City Attorney Dated: , 2005 O BELL, Defendant By: ROBERT RIZZO, Chief Administrative Officer 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2'4 2: I 2: 21 2 2 i 7 8 APPROVED AS TO FO L. SA 22 SETTLEMENT AGREEMENT EXHIBIT A i 1 2 3 4 5 6 7 8 9II 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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@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@frandzel.com Attorne s for Plaintiff CITY OF HUNTIN TON BEACH UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 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. HUNTINGTON BEACH POLICE OFFICERS ASSOCIATION, a California mutual benefit corporation; et al., Defendants. And Related Claims and Third Party Complaints. CASE NO. SACV 0 1- 1125 JVS (ANx) [PROPOSED] ORDER AND JUDGMENT 23 SETTLEMENT AGREEMENT 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 PRINTED ON THE COURT HAS CONSIDERED THE FOREGOING Settlement Agreement by and between Plaintiff, City of Huntington Beach ("City") and Defendant and Third Party Defendant, the City of Bell (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: 1. The Motion to Approve the Settlement Agreement By and Between Plaintiff City of Huntington Beach and Defendant and Third Party Defendant City of Bell is granted in its entirety. 2. The Settlement Agreement attached to and made a part of this Order and Judgment 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 Defendant in the Action, or in any other proceeding (whether in equity, law or field/plead/gun range/settlement agreement 2 SETTLEMENT AGREEMENT e 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 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 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 the Third Party Plaintiff, Huntington Beach Police Officers Association, and the other non -settling parties to the Action, or future parties to this Action or 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 comparable 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 3 SETTLEMENT AGREEMENT 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 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. IT IS SO ORDERED AND JUDGMENT IS SO ENTERED. Dated: United States District Court Judge 4 SETTLEMENT AGREEMENT ATTACHMENT #2 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 PRINTED ON JENNIFER MCGRATH, City Attorney (Bar No. CA 179917) SCOTT F. FIELD, Assistant City Attorney (Bar No. CA 105 09) Box 190, 2000 Main Street Huntington Beach, California 92648 Telephone: �714 714) 536-5555 Facsimile: 374-1590 JEFFER, MANGELS, BUTLER & MARMARO LLP DAVID P. WAITE (Bar No. CA 129916) HAL D. GOLDFLAM (Bar No. CA 179689) 1900 Avenue of the Stars, Seventh Floor Los Angeles, California 90067-4308 Telephone: (310) 203-8080 Facsimile: (310) 203-0567 Attorne s for Plaintiff CITY OF HUNTINGTON BEACH UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 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. HUNTINGTON BEACH POLICE OFFICERS ASSOCIATION, a California mutual benefit corporation; UNITED STATES OF AMERICA (DEPARTMENT OF THE NAVY, et. al); COUNTY OF ORANGE; CITY OF BELL; CITY OF BUENA PARK; CITY OF COSTA MESA; CITY OF CYPRESS; CITY OF FOUNTAIN VALLEY; CITY OF GARDENA; CITY OF GARDEN GROVE; CITY OF HUNTINGTON PARK; CITY OF LA PALMA; CITY OF MANHATTAN BEACH; CITY OF ORANGE; CITY OF IRVINE; CITY OF SANTA ANA; CITY OF WESTMINSTER; SANTA ANA CASE NO. SACV 01-1125 JVS (ANx) SETTLEMENT AGREEMENT BY AND BETWEEN PLAINTIFF CITY OF HUNTINGTON BEACH AND DEFENDANT THE CITY OF BUENA PARK [PROPOSED] ORDER AND JUDGMENT CAPTION CONTINUES ON NEXT PAGE field/plead/gun range/settlement agreement/buena park SETTLEMENT AGREEMENT 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 PRINTED ON UNIFIED SCHOOL DISTRICT; DEAN' S SECURITY PROFESSIONALS; COMPETITIVE EDGE; SILVERADO SPORTSMAN CLUB; SINGLETON INTERNATIONAL; THE CENTURION GROUP; YAVAPAI FIREARMS ACADEMY, LTD.; and WESTEC SECURITY, INC. Defendants. And Related Claims And Third Party Complaints. THIS SETTLEMENT AGREEMENT AND RELEASE is entered into by and between the Plaintiff, City of Huntington Beach ("City") and Defendant, the City of Buena Park (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, 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- 1125 JVS (ANx) (the "Action") in which it seeks contribution and other relief arising under the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., the California Hazardous Substance Account Act ("HSAA"), Calif. Health & Safety Code § 25300 et seq., as well as breach of contract, nuisance, trespass, waste, negligence, contribution, and indemnity; 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 deeded by Defendant County of Orange to the City in 1963, and that from 1968 to 1997, the Property was leased from the City by Defendant Huntington field/plead/gun range/settlement agreement/buena park 2 SETTLEMENT AGREEMENT I 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 Beach Police Officer's Association (the "POA") for the purpose of operating and maintaining a gun range on the site (the "Gun Range"), which is generally depicted in the map attached as Exhibit A; City; WHEREAS, the POA has answered and asserted counter -claims against the WHEREAS, in July 2004, the POA applied to the Court and was granted leave to join as Third Party Defendants various entities that previously used the Gun Range for firearms training, including the Settling Defendant. Then on December 2, 2004, the City was granted leave to directly sue these same entities and additional persons as defendants. On December 14, 2004, the City filed its Third Amended Complaint ("TAC") adding as Defendants: United States of America; County of Orange; City of Bell; City of Buena Park; City of Costa Mesa; City of Cypress; City of Fountain Valley; City of Gardena; City of Garden Grove; City of Huntington Park; City of La Palma; City of Manhattan Beach; City of Orange; City of Irvine; City of Santa Ana; City of Westminster; Santa Ana Unified School District; Dean's Security Professionals; Competitive Edge; Silverado Sportsman Club; Singleton International; The Centurion Group; Yavapai Firearms Academy, Ltd.; and Westec Security, Inc. (collectively, "Shooters"); WHEREAS, the Shooters have generally denied the substantive claims and allegations in the TAC and in the related counter -claims, cross -claims, third party claims, 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 approximately 12,000 peace officers from no less than seventy (70) law enforcement agencies to discharge an estimated one million rounds of lead ammunition per year at the 3 SETTLEMENT AGREEMENT i f 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 Property. As part of its range maintenance program, the POA attempted to mine and recover the numerous spent ammunition rounds, slugs, and/or shell casings by sifting the soil on the site and recovering spent bullets for recycling, and that this screening procedure recovered .3 8 caliber bullets, and perhaps smaller 9- mm bullets. 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. 2. During the POA's tenancy and the POA's and 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 POA's and Shooters' activities on the Property, the City has incurred and will continue to incur response costs regarding the Property. 3. 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. The City is entitled to recover those costs and damages pursuant to the combined operation of CERCLA, HSAA and various common law theories. The City is entitled to injunctive relief to compel Defendants to remediate the Property pursuant to RCRA and various common law theories. 4. Since the POA vacated the Property 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 4 SETTLEMENT AGREEMENT I 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 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 necessary steps to remediate it and report the contamination to the Orange County Health Care Agency (OCHCA). 5. 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, which confirm that the soil at the Property is heavily contaminated with lead. The lead contamination is classified as a "hazardous waste" under RCRA and as "hazardous substances" under CERLCA and HSAA. 6. 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"). 7. 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"). If the California Department of Toxic Substances Control ("DTSC") and/or Santa Ana Regional Water Quality Control Board impose a 5 SETTLEMENT AGREEMENT 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 more restrictive cleanup based upon a health risk assessment or other criteria, 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. 8. 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. At the recommendation of DTSC, the City will prepare a risk assessment analysis, which may cause revision of the RAP. The cost of 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 TAC or the POA's First Amended Cross -Claims and Third - Party Claims (the "FAC") 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. 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. 6 SETTLEMENT AGREEMENT l 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 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. The Settling Defendant is neither an owner, operator, nor arranger, as those terms are defined under the environmental laws, including RCRA, CERCLA, and HSAA, and its activities on the Property, if any, do not constitute the disposal or 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, the Settling Defendant on February 7, 2005, joined in filing Defendants' Joint Motion to Dismiss and Defendants' Joint Motion to Strike the Plaintiff's TAC and Defendants' Motion to Dismiss and Defendants' Joint Motion to Strike the POA's FAC. The motions are currently set for hearing on September 12, 2005. The City and the POA have filed oppositions asserting they have alleged viable claims; SETTLEMENT AGREEMENT 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, 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 City of Buena Park; 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 B, 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 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. Selna presiding) (the "Court") has jurisdiction over the Settling Parties and jurisdiction over the subject matter of the Action pursuant to CERCLA Section 113(b) (42 U.S.C. § 9613(b)), and 28 U.S.C. §§ 1331 and 1367(a). 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 in this District, or to service of process. 8 SETTLEMENT AGREEMENT 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 II. 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 hazardous substances and hazardous waste as those terms are used in the 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 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 in other statutory or decisional environmental law, as heretofore or hereafter amended. IV. SETTLEMENT PAYMENT A. Amounts. Subject to and consistent with the terms and provisions of this Agreement, the Settling Defendant shall pay the City of Huntington Beach Eight Thousand Five Hundred Dollars ($8,500.00). B. Payment. The Settling Defendant shall deliver its settlement payment to counsel for the Plaintiff at counsel's address listed in Section XI Subsection G (Notice), within 1) fifty (50) business days after both of the following has occurred: 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) ten (10) 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. 9 SETTLEMENT AGREEMENT 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 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 Settling Parties hereby agree that 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, all claims asserted, or which could have been asserted, by the Settling Defendant against each other party in the Action for which there is a comparable dismissal of that party's claims against the Settling Defendant. B. Dismissal of the TAC. 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 TAC in favor of 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 claims arising from alleged breaches of this Section and Sections X, XIA and XIB of this Settlement Agreement, or fraud in the declaration referred to at Section VIA, and except for claims expressly or 10 SETTLEMENT AGREEMENT 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 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, and the City further releases the Settling Defendant's insurers) 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 for which there is a comparable release of that party's claims against the Settling Defendant. In addition, with the exception of any non -settling party that appeals the Order (including a modified version of the Order), upon entry of the Order or modified Order by the Court, this release of claims shall include, without limitation, a release of and covenant not to sue on claims by the Settling Defendant against any non -settling party to the Action, including the POA. 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. 11 SETTLEMENT AGREEMENT 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 City (but not the Settling Defendant) 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. 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. 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 and CERCLA Section 113(f), 42 U.S.C. § 9613(f)(2), 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 12 SETTLEMENT AGREEMENT 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 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 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 B as a condition precedent to the obligations of the Settling Defendant under Section IV 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 their respective counsel shall join in, a mutually acceptable joint motion or other appropriate legal proceeding(s) as may be 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. 13 SETTLEMENT AGREEMENT 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 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 TAC in favor of 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. If the modified Order and Judgment is reversed on 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 14 SETTLEMENT AGREEMENT 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 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 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, 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. City Duty to Defend and Indemnify Conditional Upon Cooperation. The City's duty to defend and indemnify the Settling Defendant shall be governed by Section VII and Sections V B 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, 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. The Settling Defendant waives any actual or potential conflict of interest of its defense 15 SETTLEMENT AGREEMENT 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 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. 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: 1. The Settling Defendant shall cooperate with Designated Counsel in the defense of the Action by testifying at trial and submitting to a properly noticed oral deposition, providing declarations necessary to the efficient prosecution of the Action 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 16 SETTLEMENT AGREEMENT 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 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. A Settling Defendant may be required 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. VIII. APPEAL A. Reversal Of Order And 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 Ninth Circuit 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 TAC 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 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 United States 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 both of 17 SETTLEMENT AGREEMENT 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 the following occur: (1) the execution of the Settlement Agreement by the City, and (2) the execution of the Settlement Agreement by the Settling Defendant. 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 Settling Parties cannot resolve among themselves, such dispute shall be heard and resolved by the Court. XI. ADDITIONAL TERMS A. Representations of Non-Assignment/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 fraud exception described in Paragraph VC, 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. 18 SETTLEMENT AGREEMENT 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 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 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 19 SETTLEMENT AGREEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25I 26 27 28 and entry of a dismissal, whether by court order or voluntary dismissal with prejudice, of the operative complaint (currently City's TAC) 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 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 BUENA PARK Buena Park City Clerk City of Buena Park 6650 Beach Blvd. Buena Park, 90622-5009 Lisa Bond, Esq. Richards, Watson & Gershon 355 S. Grand Avenue, 40th Floor Los Angeles, CA 90071 Facsimile: (213) 626-0078 20 SETTLEMENT AGREEMENT 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 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 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 21 SETTLEMENT AGREEMENT CITY of BUENA PARK ID:714-562-3559 SEP 06'05 16:35 No.001 P.02 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 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. October Dated: * 13 —2005 CITY O UNTINGTON BE CH, Plaintiff By: PENELOPE CULBRETH-GRAFT, City Administrator APPROVED AS TO FORM: By: SCOTT F. FIELD, Assistant City Attorney Dated: - — ' , 2005 dy% CITY OF BUENA PA Defendant By:rT`f Dated: , 2005 Received at RWG Law: 9/6/2005 5:01:30 PM APPROVED AS TO FORM: By: LISA BO , E 22 SKI"['LEMENT AGREEMENT I �J 0 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 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: June , 2005 CITY OF HUNTINGTON BEACH, Plaintiff By: PENELOPE CULBRETH-GRAFT, City Administrator Dated: June , 2005 Dated: g , 2005 APPROVED AS TO FO,R�M�:, By:_�/ SCOTT F. FIELD, Assistant City Attorney CITY OF BUENA PARK Defendant By: APPROVED AS TO FORM: By: L-k— a LISA ON , ES . 22 SETTLEMENT AGREEMENT 11 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 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: Dated: June ,2005 CITY OF HUNTINGTON BEACH, Plaintiff By: PENELOPE CULBRETH-GRAFT, City Administrator APPROVED AS TO FORM: By: SCOTT F. FIELD, Assistant City Attorney 2005 1% CITY OF BUENA PA Defendant By: I)�Pu-t\j *-4A- &607- Dated: 92005 APPROVED AS TO FORM: By: LISA BOND, ESQ. 22 SETTLEMENT AGREEMENT EXHIBIT A