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HomeMy WebLinkAboutC-3777 - Tolling Agreement; Amendment No. 4a AMENDMENT NO. 4 TO THE TOLLING AGREEMENT ENTERED INTO BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT CONDOMINIUM ASSOCIATION THIS AMENDMENT NO. 4 TO TOLLING AGREEMENT, entered into this 26th day of July, 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and the Newport Condominium Association, a California Non -Profit Mutual Benefit Corporation ( "NCA "), is made with reference to the following: RECITALS A. On October 13, 2004, the NCA filed a lawsuit entitled Newport Condominium Ass'n v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed, in the United States District Court, Central District of California, Orange County Division ("Action"). B. On June 1, 2005, the City and NCA entered into the Tolling Agreement attached hereto as Exhibit "A" ( "Tolling Agreement ") in an effort to avoid the continuing costs of the Action and to allow the City and its consultant time to complete a cost estimate for a final scope of work for all design and other work necessary to repair and upgrade the landfill gas system ( "Final SOW "). C. On December 20, 2005, the City and NCA entered into Amendment No. 1 to the Tolling Agreement because additional time was necessary for the City and its consultant to complete a cost estimate for the Final SOW. The Tolling Agreement, as amended expired on March 31, 2006. D. On March 28, 2006, the City and NCA entered into Amendment No. 2 to the Tolling Agreement because additional time was necessary for the City and its consultant to complete a cost estimate for the Final SOW. The Tolling Agreement, as amended, will expire on May 31, 2006. E. On May 23, 2006, the City and NCA entered into Amendment No. 3 to the Tolling Agreement because additional time was necessary for the City and its consultant to complete a cost estimate for the Final SOW. The Toiling Agreement, as amended, will expire on July 31, 2006. The City and NCA have agreed that additional time is necessary for the City and its consultant to complete a cost estimate for the Final SOW. G. To this end, the City and NCA mutually desire to amend the Tolling Agreement, as provided in this Amendment No. 4. NOW, THEREFORE, the parties hereto agree as follows: Paragraph 2 of the Tolling Agreement is hereby amended to read as follows: "The Parties, including each of their respective political subdivisions, agencies, elected representatives, employees and agents, if any, agree that any defense of expiration of any time period, statute of limitations, statute of repose, laches or other deadline applicable to any cause of action, claim, of the other Party arising out of the Action, or in conjunction with the Landfill, are tolled from execution of this Tolling Agreement until the Settlement Agreement is executed as described below or until November 30, 2006, whichever is earlier ( "Tolled Period ") and such shall be excluded from all computations of any applicable period of limitations, including without limitation, the requirements of California Government Code Section 945.6. This Tolling Agreement is without prejudice to any defense by either of the Parties that any such statute of limitations or statute of repose or laches expired prior to the date of tolling." 2. The signatories warrant and represent that he or she has the authority to make this Amendment No. 4 to the Tolling Agreement on behalf of the party for which he or she signs. 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Tolling Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 4 on the date first above written. APPROVED AS TO FORM: 4'. lr . Aaron u. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: /y� // /� 5L Vonne Harkless, City Clerk for the City of Newport Beach. Anorneys Tor NtvvF'UK I UUNUUMINIUM ASSOCIATION CITY OF NEWPORT B H, A Munic rp r By: Do ebb, Mayor for the City of Newport Beach NEWPORT CONDOMINIUM ASSOCIATION By: Title: Print • • other deadline applicable to any cause of action, claim, of the other Party arising out of the Action, or in conjunction with the Landfill, are tolled from execution of this Tolling Agreement until the Settlement Agreement is executed as described below or until November 30, 2008, whichever Is earner (`Tolled Period ") and such shall be excluded from all computations of any applicable period of limitations, Including without limitation, the requirements of California Government Code Section 945.8. This Tolling Agreement is without prejudice to any defense by either of the Parties that any such statute of limitations or statute of repose or lathes expired prior to the date of tolling.' 2. The signatories warrant and represent that he or she has the authority to make this Amendment No. 4 to the Tolling Agreement on behalf of the party for which he or she signs. 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Tolling Agreement shall remain unchanged and shall be in full farce and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 4 on the date first above written. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attomey for the City of Newport Beach ATTEST: LaVonne Ha*less, City Clerk for the Cfty-of Newport Beach APPROVED AS TO I-- . �.. • . , _,,,,. VOSS, COOK & THEL LLP Attorneys for NEWPORT CONDOMINIUM ASSOCIATION 1 / NEWPORT CONDOMINIUM ASSOCIATION n r, , A i By: Tula: Ylc Pn:erIAW HOA Print Name: I?" ll f fdf it rue r ,L L AMENDMENT NO. 3 TO THE TOLLING AGREEMENT ENTERED INTO BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT CONDOMINIUM ASSOCIATION THIS AMENDMENT NO. 3 TO TOLLING AGREEMENT, entered into this a3rd day of May, 2006, by and between the CITY OF NEWPORT BEACH, a municipal 'corporation ( "City"), and the Newport Condominium Association, a California Non -Profit Mutual Benefit Corporation ( "NCA "), is made with reference to the following: RECITALS A. On October 13, 2004, the NCA filed a lawsuit entitled Newport Condominium Ass'n v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed in the United States District Court, Central District of California, Orange County Division ( "Action "). B. On June 1, 2005, the City and NCA entered into the Tolling Agreement attached hereto as Exhibit "A" ( "Tolling Agreement ") in an effort to avoid the continuing costs of the Action and to allow the City and its consultant time to complete a cost estimate for a final scope of work for all design and other work necessary to repair and upgrade the landfill gas system ( "Final SOW "). C. On December 20, 2005, the City and NCA entered into Amendment No. 1 to the Tolling Agreement because additional time was necessary for the City and its consultant to complete a cost estimate for the Final SOW. The Tolling Agreement, as amended expired on March 31, 2006. D. On March 28, 2006, the City and NCA entered into Amendment No. 2 to the Tolling Agreement because additional time was necessary for the City and its consultant to complete a cost estimate for the Final SOW. The Tolling Agreement, as amended, will expire on May 31, 2006. E. The City and NCA have agreed that additional time is necessary for the City and its consultant to complete a cost estimate for the Final SOW. F. To this end, the City and NCA mutually desire to amend the Tolling Agreement, as provided in this Amendment No. 3. NOW, THEREFORE, the parties hereto agree as follows: 1. Paragraph 2 of the Tolling Agreement is hereby amended to read as follows: "The Parties, including each of their respective political subdivisions, agencies, elected representatives, employees and agents, if any, agree that any defense of expiration of any time period, statute of limitations, statute of repose, lachee or other deadline applicable to any cause of action,. claim, of the other Party arising out of the Action, or in conjunction with the Landfill, are tolled from execution of this Tolling Agreement until the Settlement Agreement is executed as described below or until July 31, 2006, whichever is earlier ("Tolled Perfod°) and such shall be excluded from all computation: of any applicable period of [Imitations, including without limitation, the requirements of California Government Code Section 945.6. This Tolling Agreement is without prejudice to any defense by either of the Parties that any such statute of limitations or statute of repose or laches expired prior to the date of tDIling.° 2. The signatories warrant and represent that he or she has the authority to make this Amendment No. 3 to the Tolling Agreement on behalf of the party for which he or she signs. 3. Except as expressly modified herein, all other provisions, term, and covenants set forth In the Tolling Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 3 on the date first above written. APPROVED AS TO FORM: C. qt't Caron C. Harp, Assistant City Attomey for the City of Newport Beach ATTEST: La onns Harkless, City Clerk for the City of Newport Beach CITY OF NEWPORT , A Br• Don Webb, Mayor for the City of Newport Beach NEWPORT CONDOMINKM ASSOCIATION This: V P G� ��11 //) ZZPrint Name: r o V �'i / APP VE© / FORM John E. Van Vlear, Esq. VOSS, COOK & THEL LLP A#Dffmys far NEWPORT CONDOMINIUM ASSOCIATION AMENDMENT NO.2 TO THE TOLLING AGREEMENT ENTERED INTO BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT CONDOMINIUM ASSOCIATION THIS AMENDMENT NO. 2 TO TOLLING AGREEMENT, entered into this Z 8'bs% day of March, 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City"), and the Newport Condominium Association, a California Non - Profit Mutual Benefit Corporation ("NCA "), is made with reference to the following: RECITALS A. On October 13, 2004, the NCA filed a lawsuit entitled Newport Condominium Ass'n v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed in the United States District Court, Central District of California, Orange County Division ( "Action "). B. On June 1, 2005, the City and NCA entered into the Tolling Agreement attached hereto as Exhibit "A" ('Tolling Agreement") in an effort to avoid the continuing costs of the Action and to allow the City and its consultant time to complete a cost estimate for a final scope of work for all design and other work necessary to repair and upgrade the landfill gas system ( "Final SOW"). C. On December 20, 2005, the City and NCA entered into Amendment No. 1 to the Tolling Agreement because additional time was necessary for the City and its consultant to complete a cost estimate for the Final SOW. The Tolling Agreement, as amended, will expire on March 31, 2006. D. The City and NCA have agreed that additional time is necessary for the City and its consultant to complete a cost estimate for the Final SOW. E. To this end, the City and NCA mutually desire to amend the Tolling Agreement, as provided in this Amendment No. 2. NOW, THEREFORE, the parties hereto agree as follows: Paragraph 2 of the Tolling Agreement is hereby amended to read as follows: "The Parties, including each of their respective political subdivisions, agencies, elected representatives, employees and agents, if any, agree that any defense of expiration of any time period, statute of limitations, statute of repose, laches or other deadline applicable to any cause of action, claim, of the other Party arising out of the Action, or in conjunction with the Landfill, are tolled from execution of this Tolling Agreement until the Settlement Agreement is executed as described below or until May 31, 2006, whichever is earlier ("Tolled Period") and such shall be excluded from all computations of any applicable period of limitations, including without limitation, the requirements of California Government Code Section 945.6. This Tolling Agreement is without prejudice to any defense by either of the Parties that any such statute of limitations or statute of repose or laches expired prior to the date of tolling." 2. The signatories warrant and represent that he or she has the authority to make this Amendment No. 2 to the Tolling Agreement on behalf of the party for which he or she signs. 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Tolling Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 on the date first above written. APPROVED AS TO FORM: City of Newport Beach APPROVED AS TO FORM: ohn E. Van Vlear, Esq. VOSS, COOK & THEL LLP Attorneys for NEWPORT CONDOMINIUM ASSOCIATION CITY OF NEWPORT EACH, A M C rpor By ZA Don:Webb, Mayor for the City of Newport Beach NEWPORT CONDOMINIUM ASSOCIATION By: Title: ��- Print Name: R de ,f RW 0 1? iZ 144 Amk AMENDMENT NO. 1 TO THE TOLLING AGREEMENT ENTERED INTO BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT CONDOMINIUM ASSOCIATION THIS AMENDMENT NO. 1 TO TOLLING AGREEMENT, entered into this day of December, 2005, by and between the CITY OF NEWPORT BEACH, a municipal corporation (hereinafter referred to as "City "), and the Newport Condominium Association, a California Non - Profit Mutual Benefit Corporation (hereinafter referred to as ("NCA"), is made with reference to the following: RECITALS A. On October 13, 2004, the NCA filed a lawsuit entitled Newport Condominium Ass'n v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed in the United. States District Court, Central District of California, Orange County Division ( "Action "). B. On June 1, 2005, the City and NCA entered into the Tolling Agreement attached hereto as Exhibit "A" in an effort to avoid the continuing costs of the Action and to allow the City and its consultant time to complete a cost estimate for a final scope of work for all design and other work necessary to repair and upgrade the landfill gas system ( "Final SOW "). C. The Tolling Agreement will expire on December 31, 2005. D. The City and NCA have agreed that additional time is necessary for the City and its consultant to complete a cost estimate for the Final SOW. E. To this end, City and NCA mutually desire to amend the Agreement, as provided in this Amendment No. 1. NOW, THEREFORE, the parties hereto agree as follows: Paragraph 2 of the Tolling Agreement is hereby amended to read as follows: "The Parties, including each of their respective political subdivisions, agencies, elected representatives, employees and agents, if any, agree that any defense of expiration of any time period, statute of limitations, statute of repose, laches or other deadline applicable to any cause of action, claim, of the other Party arising out of the Action, or in conjunction with the Landfill, are tolled from execution of this Tolling Agreement until the Settlement Agreement is executed as described below or until March 31, 2006, whichever is earlier ( "Tolled Period ") and such shall be excluded from all computations of any applicable period of limitations, including without limitation, the requirements of California Government Code Section 945.6. This Tolling Agreement is without prejudice to any defense by either of the Parties that any such statute of limitations or statute of repose or laches expired prior to the date of tolling." The signatories warrant and represent that he or she has the authority to make this Amendment No. 1 to the Tolling Agreement on behalf of the party for which he or she signs. 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Tolling Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: o+^-- C, c...�� Aaron C. Harp, Assistant City Attorney for the City of Newport Beach LaVonne Harkless, APPROVED AS TO FORM: E.`Van Vlear, Esq. i, COOK & THEL LLP Attorneys for NEWPORT CONDOMINIUM ASSOCIATION CITY OF NEWPORT BEACH, A Municipal- 6orooration /) 'IWebb , Mayor the City of Newport Beach NEWPORT CONDOMINIUM ASSOCIATION By: Title: V IC Print Name: /il���� a2 tal1L TOLLING AGREEMENT Tins Tolling Agreement ( "Tolling Agreement's is made and entered into effective as of June ,V2005, by and between, Newport Condominium Association, a California Non -Pro fit Mutual Benefit Corporation, ( "NCA "), and the City of Newport Beach, a California Charter City ("City"), collectively referred to herein as the Parties. RECITALS WHEREAS, on October 13, 2004, the NCA filed a lawsuit entitled Newport Condominium Assn v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed in the United States District Court, Central District of California, Orange County Division ( "Action "). WHEREAS, the Parties agreed to enter into the settlement agreement, entitled the Settlement and License Agreement, attached hereto as Exhibit 1 ( "Settlement Agreement"), upon completion of the condition discussed below. WHEREAS, the Parties have elected to enter into this Tolling Agreement in an effort to avoid the continuing costs of the Action and to allow the City and its consultant to complete an estimate for a final scope of work for all design and other work necessary to repair and upgrade the LFG system ( "Final SOW "), as defined in Settlement Agreement. The Settlement Agreement is contingent on whether the estimate for the Final SOW, as approved by the regulators and Parties, does not exceed $1 million. This Tolling Agreement is necessary to allow for the completion of the Final SOW and estimate, and to prevent the Action from interfering with these efforts. NOW, THEREFORE, based upon the foregoing promises, and in consideration of the mutual covenants, conditions, and agreements herein, it is hereby agreed as follows: AGREEMENT 1. The above stated Recitals and the terms of the attached Settlement Agreement are hereby incorporated by reference into this Tolling Agreement as if set forth in their entirety. 2. The Parties, including each of their respective political subdivisions, agencies, elected representatives, employees and agents, if any, agree that any defense of expiration of any time period, statute of limitations, statute of repose, laches or other deadline applicable to any cause of action, claim, of the other Party arising out of the Action, or in conjunction with the Landfill, are tolled from execution of this Tolling Agreement until the Settlement Agreement is executed as described below or until December 31, 2005, whichever is earlier ( "Tolled Period ") and such shall be excluded from all computations of any applicable period of limitations, including without limitation, the requirements of California Government Code Section 945.6. 1 of 3 • • This Tolling Agreement is without prejudice to any defense by either of the Parties that any such statute of limitations or statute of repose or laches expired prior to the date of tolling. 3. Within 10 days of the execution of this Tolling Agreement, the NCA agrees to dismiss its Action without prejudice for the Tolled Period. 4. The Parties agree to enter into the attached Settlement Agreement, if the City is able to produce an estimate for a Final SOW that is under $1 million. 5. During the Tolled Period, the City agrees to pay for half of the costs of interim O &M on the existing LFG system, up to $2,250.00 per month. The NCA is currently paying the interim Q &M, and will continue to pay its half of said costs, and all other interim O&M costs not paid by the City, during the Tolled Period. The City shall make such payments in a timely manner. 6. If the estimate for the approved Final SOW does not exceed one million dollars the Parties shall execute the attached Settlement and License Agreement within 10 days of receipt of this estimate. 7. If the costs for the Final SOW are over $1 million, then: (a) The NCA, in its own discretion, may re -file the Action within sixty (60) days of the end of the Tolled Period. In this event, the City agrees to waive any procedural impediments to such a re -filing within the sixty (60) days, such as notices required under state and federal law for filing actions against the City. (b) The City, in its own discretion, may stop paying for half of the costs for interim O &M on the existing LFG system. (c) All other provisions of this Tolling Agreement become null and void. (d) While the Parties may elect to undertake mediation if the costs for the Final SOW are over $1 million, the expedited mediation - arbitration provisions set forth in Paragraph 15 of the Settlement Agreement do not apply if the costs for the Final SOW are over $1 million. 8. By entering into this Tolling Agreement, the Parties do not admit any fact nor assume any liability of any kind. Moreover, this Tolling Agreement, any consideration hereunder, or anything contained in this Tolling Agreement or the Settlement Agreement may not be offered as evidence of an admission of such responsibility or liability in any court or legal proceeding. Additionally, the Parties agree that neither Party will use any of the actions taken to complete the Final SOW and finalize the Settlement Agreement as evidence of an admission of such responsibility or liability in any court or legal proceeding, including, but not limited to, any 2 of 3 agreements with consultants or other third -party vendors, requests for or issuance of permits, or negotiations with regulatory agencies regarding the Final SOW. 9. The signatories warrant and represent that he or she has the authority to make this Tolling Agreement on behalf of the Party for which he or she signs. IN WITNESS WHEREOF, the Parties hereto have executed this Tolling Agreement as of the date first set forth hereinabove. Dated: Dated: �_/ Z G / 5— APPROVED AS TO FORM: Dated: S� / Z 6 ! F Dated: ATTEST: &earkless Citg Clerk By: / 1 RfchArd Orrill Vice President NEWPORT CONDOMINIUM ASSOCIATION M CITY RT BEACH By: Robin L. Clauson, Esq. City Attorney VOSS, COOK & THEL LLP By:l John. Van Vlear, Esq. VOSS, COOK & THEL LLP Attorneys for NEWPORT CONDOMIUM ASSOCIATION 3 of 3 0 EXHIBIT "I" i 0 SETTLEMENT AND LICENSE AGREEMENT This Settlement and License Agreement ("Settlement Agreement ") is made and entered into by and between the Newport Condominium Association ( "NCA "), a 501(c)(3) non -profit mutual benefit corporation, and the City of Newport Beach ( "City"), a municipal corporation. The NCA and the City are sometimes hereinafter collectively referred to as the "Parties, " - or separately as a "Party." The Parties are entering into this Settlement Agreement based on their collective desire to resolve those claims between the NCA and the City in the case entitled Newport Condominium Assn v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed on October 13, 2004, in the United States District Court, Central District of California, Orange County Division. RECITALS WHEREAS, on October 13, 2004, the NCA filed a lawsuit entitled Newport Condominium Assn v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed in the United States District Court, Central District of California, Orange County Division ( "Action "). WHEREAS, the Action arises out of a dispute over who is responsible for post - closure maintenance of the former Newport Terrace landfill ( "Landfill',), which was owned and operated by the City from approximately 1953 to 1965. WHEREAS, waste disposed at the Landfill is generating landfill gas and must be properly controlled. WHEREAS, the City alleges that responsibility for control of landfill gas at the Landfill was transferred by the City to the developer, Leadership Housing Systems, Inc. ("developer"), in 1972, and then transferred from the developer to the NCA. Page 1 of 21 0 0 WHEREAS, the NCA alleges that hazardous substances are being released from the Landfill as a result of the City's historic disposal practices, and that responsibility for long -term liability was never transferred to the NCA, but instead, the City retained this responsibility and made this express representation to regulators at the time the Landfill was developed. WHEREAS, recent regulatory enforcement actions by the California Integrated Waste Management Board ("State Board ") and the Orange County Health Care Agency ( "LEA') precipitated the Action by putting at issue who is responsible for controlling landfill gas (also defined as "LFG'), including past costs, required upgrades and/or replacement of the existing landfill gas control system ( "LFG system'), and the long -term operation and maintenance ( "O &M ") of the LFG system. WHEREAS, with its Action, the NCA seeks: (1) recovery of past and fixture response costs under Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. ( "CERCLA "), and California Hazardous Substance Account Act, Health & Safety Code §§ 25300 et seq. ("HSAA "), estimating past costs to be in excess of $690,000; (2) injunctive relief and litigation costs under Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; ( "RCRA "), and (3) declaratory relief establishing the Parties' respective responsibilities for regulatory concerns at the Landfill. WHEREAS, in its defense, the City denies any liability, and contends that all responsibility for control of LFG was transferred to the NCA, and the NCA is solely responsible for any alleged past costs, and for causing the deterioration of the LFG system, and the related regulatory actions. WHEREAS, that certain Declaration of Covenants, Conditions and Restrictions for Newport Terrace was recorded on November 19, 1973, in Book 10994, Page 528 in the Orange Page 2 of 21 County Recorder's Office, as amended and supplemented ( "CC &Rs ") as an encumbrance against the common area owned and maintained by the NCA and the Condominiums owned by the members of the NCA. WHEREAS, the NCA has determined that it is necessary to level assessments on its membership, pursuant to California Civil Code Section 1364(a) and 1366, to satisfy its obligations under this Settlement Agreement. THEREFORE, in consideration of the terms and conditions set forth herein, the Parties agree as follows: TERMS For purposes of this Settlement Agreement, the following terms shall be defined as follows: A. The term "Action" shall mean the lawsuit entitled Newport Condominium Ass'n v. City of Newport Beach, Case No. SACV04 -1204 DOC (MLGx), filed on October 13, 2004, by the NCA in the United States District Court, Central District of California, Orange County Division. B. The term "Arbitrator" shall mean the Initial Arbitrator or Successor Arbitrator(s) as defined herein. C. The term "Arbitration" shall mean the dispute resolution procedures agreed to in paragraph 13 below. D. The term "Arbitration Topics" shall mean any disputes that arise between the NCA and the City related to interpretation and application of the terms of this Settlement Agreement, including, but not limited to, disputes as to the Final SOW or O &M, as these terms are defined herein, or any other topic addressed in the Settlement Agreement. Page 3 of 21 • bI E. The term "Award" shall mean the Arbitrator's decision on any dispute related to this Settlement Agreement. F. The term "CC&Rs" shall mean the Declaration of Covenants, Conditions and Restrictions for Newport Terrace that was recorded on November 19, 1973, in Book 10994, Page 528 in the Orange County Recorder's Office, and all amendments and supplements thereto.. G. The term "Escrow Account" shall mean the mutually- agreed upon third party escrow account, created to hold funds necessary to implement certain terms of this Settlement Agreement. H. The term "Formal Arbitration" shall mean Arbitration that includes the compilation of a formal record, a written reasoned decision with findings of fact that are consistent with the record, and an Award that is subject to appeal pursuant to the provisions set forth below. I. The term "Final SOW" shall mean the final scope of work, approved by all applicable regulatory agencies, for all design and other work necessary to repair and upgrade the LFG system. J. The term "Informal Arbitration" shall mean Arbitration that does not include the compilation of a formal record, a written reasoned decision with findings of fact that are consistent with the record, and that is not subject to appeal pursuant to the provisions set forth below. K. The term "Initial Arbitrator" shall mean the Honorable John Leo Wagner (Ret.), who is vested with continuing jurisdiction. to resolve disputes arising out of this Settlement Agreement. Page 4 of 21 0 0 L. The term "Investigation" shall mean any further technical investigation required by responsible regulatory agencies related to LFG at the Landfill. M. The term "Landfill" shall mean the former Newport Terrace landfill, which was owned and operated by City from approximately 1953 to 1965, including the "rubble- fill' area. N. The terms "landfill gas" or "LFG" are interchangeable and shall mean and refer to any methane gas or any other gas generated from waste material that has been disposed of at the Landfill. O. The term "LEA" shall mean the local enforcement agency with jurisdiction over post - closure maintenance of former landfills, which is currently the Orange County Health Care Agency. P. The term "LFG system" shall mean any equipment used to control LFG at the Landfill, including, but not limited to, any and all monitoring and/or extraction wells, compliance probes, underground piping, valves, blower stations, etc. Q. The term "Licensees" or "Licensee" shall mean the City, its agents, contractors and any other person acting on the City's behalf to exercise the license granted herein to implement this Settlement Agreement. R. The terms "operation and maintenance" or "O &M" are interchangeable and shall mean and refer to the following activities: i. Routine O &M may include, but is not limited to, the following activities: periodic adjustments of the extraction wells and blower station, periodic carbon station monitoring, periodic testing of the on -site monitoring probes, periodic air emission testing, Page 5 of 21 periodic maintenance of the condensate traps, periodic maintenance of the blower station, and periodic and quarterly regulatory reporting. ii. Non -routine O &M may include, but is not limited to, the following activities: corrective repair or maintenance work that is identified during the routine visits, which may include items such as repair or replacement of non - functional condensate traps, repair of blocked lateral lines, replacement of non - functional extraction or monitoring wells, repeated monitoring of areas suspected to be out of compliance (i.e., surface emissions and probes), repair or replacement of carbon station equipment, emergency call -out by on -site personnel, repair of main header line breaks (resulting in no gas flow to the blower or carbon station), odor complaints, and loss of carbon station operation. iii. Anticipated long -term repairs may include, but are not limited to, the following activities: corrective repair or maintenance work that becomes necessary over the course of time due to wear and tear on the system, which may include the replacement of major system components like blowers, extraction wells, and header lines. agencies. iv. Upgrades to the system as required by applicable regulatory S. The term "State Board" shall mean the state agency with jurisdiction over post - closure maintenance of former landfills, which is currently the California Integrated Waste Management Board. T. The term "Successor Arbitrator(s)" shall mean the successor(s) to the Initial Arbitrator, as defined above, who will be selected by the Parties, if possible, and a court of competent jurisdiction, if necessary, if and when the Initial Arbitrator refuses or can no longer reasonably serve in this role. Page 6 of 21 • SPECIFIC PROVISIONS 0 1. Completion and Approval of the Final SOW. The City will complete all design and other work necessary to obtain regulatory approval for the Final SOW. Both Parties agree to work cooperatively and take all efforts necessary to secure regulatory approval of the safest and most cost - effective Final SOW. With respect to all regulatory agency interaction, both Parties will be involved in the process at every stage, provided with drafts of all documents before submittal to the LEA or other regulatory agency, and will, in good faith, consider one another's comments and requests and shall endeavor to accommodate the other's requests whenever possible. 2. Repair and Upgrade of the LFG System. The City agrees to oversee and implement all design, construction, and other work necessary to implement the Final SOW. A. NCA Pays for Half of the Final SOW. The City and the NCA agree to pay half of all costs actually incurred, up to $500,000 maximum per Party, directly related to design, construction, and completion of the Final SOW. Escrow fees, re- landscaping costs, O &M costs, and/or Investigation costs, as separately agreed to herein, shall not be considered as costs directly related to the design, construction, and completion of the Final SOW and shall not apply to the $500,000 maximum contribution referenced in this section. The City shall solely be responsible for all cost overruns, if any, above $1 million related to design, construction, and completion of the Final SOW. B. Payment for Final SOW Via Escrow Account. Within 30 days after approval of the Final SOW by all responsible regulatory agencies, but in no case earlier than July 31, 2005, the City and the NCA shall each deposit $500,000 into a third party escrow account ( "Escrow Account"). Payment into the Escrow Account for the Final SOW by both Parties is a material term of this Settlement Agreement and a failure by either Party to so deposit its share Page 7 of 21 0 shall immediately entitle the non breaching Party to all rights and remedies of this Settlement Agreement. i. The City shall send copies of any invoices for fees, expenses, and costs to the NCA as soon as possible. The NCA shall endeavor to review such invoices as soon as possible after receipt from the City. Should the NCA seek adjustment or recommend only partial payment of any invoice, the NCA shall endeavor to notify City of each such adjustment as soon as possible. Should the NCA fail to notify City of an adjustment or approval of an invoice within 45 days of receipt then the NCA shall waive its right of approval and the escrow company may immediately pay the invoice. ii. The costs of the Escrow Account, if any, shall be borne equally by the City and the NCA. The Escrow Account costs shall be in addition to the Parties' other commitments herein to fund construction and implementation of the Final SOW. Any funds remaining in escrow after the completion of the Final SOW, including accumulated interest, shall be returned to the Parties on an equal basis. C. LandscaninQ. The City agrees to attempt to minimize impacts to existing NCA landscaping in implementing the Final SOW. The NCA agrees to pay for any necessary re- landscaping associated with the Final SOW. ' All re- landscaping shall require minimal watering and shall employ the type of plants that are likely to not contain root structures that could damage equipment and materials related in any way to the Final SOW or LFG system. At least 30 days before installing the re- landscaping, the NCA shall provide the City with the specifications and design for such re- landscaping. While the City shall not have a veto power over such re- landscaping, if the City objects to any aspect it may submit the dispute to Expedited Page 8 of 21 Arbitration as set forth herein below. All re- landscaping costs shall be in addition to the NCA's commitment to fund up to $500,000 for construction and implementation of the Final SOW. D. Exclusive Use of LFG System. The Parties agree that the LFG system shall not be used in a fashion unrelated to the Landfill unless the Parties agree. 3. O &M Before Completion of the Final SOW. The City agrees to pay for half of the costs for interim O&M on the existing LFG system from the effective date of this Settlement Agreement until completion of the Final SOW, up to $2,250.00 per month. The NCA is currently paying the interim O &M, and will continue to pay its half of said costs, and all other interim O &M costs not paid by the City, until completion of the Final SOW. The City shall make such payments in a timely manner. These interim O &M costs shall be in addition to the Parties' other commitments herein to fund construction and implementation of the Final SOW. 4. O &M After Completion of the Final SOW. After completion of the Final SOW, the City agrees to oversee and implement all aspects of O &M related to LFG at the Landfill, for as long as the responsible regulatory agencies require such work. The Parties agree to each pay half of all costs actually incurred on such O&M. These costs shall be in addition to the Parties' other commitments herein to fund construction and implementation of the Final SOW. A. Timely Payment. The NCA agrees to pay its half of all costs for O &M actually incurred within 45 days of receipt of an invoice for said costs. B. Maintenance of a Reserve Fund. Both Parties agree to maintain a reserve fund of at least $6,000 to address any necessary O &M, as defined herein, including but not limited to, non - routine O&M or anticipated future repairs. This reserve fund amount shall increase by $250 per year for the life of this Settlement Agreement unless the Parties mutually Page 9 of 21 agree in writing that such increases may be suspended. The Parties agree to provide an accounting of such immediately upon request by the other Party. S. Further Investigation. The City agrees to oversee and implement all further Investigation required by responsible regulatory agencies, if any, related to LFG at the Landfill. The Parties agree to each pay half of all Investigation costs actually incurred. These costs shall be in addition to the Parties' other commitments herein to fund construction and implementation of the Final SOW. 6. License. With this Settlement Agreement, the NCA hereby grants the City, its agents, contractors and any other person, acting on the City's behalf (collectively "Licensees ") a non - exclusive, irrevocable license to access the Landfill for the purpose of implementing this Settlement Agreement for the duration of this Settlement Agreement. The City shall record in the Orange County Recorder's Office the attached Memorandum of Settlement and License Agreement against all common areas (as defined in the CC &Rs), attaching and incorporating in full this Settlement Agreement, in the form attached as Exhibit A hereto, within 30 days of execution of this Settlement Agreement.. Absent an emergency, at least 24 hours prior to exercising physical access, Licensees shall provide NCA with written notice of such intent to access by fax or electronic mail to NCA's designated representative. The City will make best efforts to prevent any type of liens from being attached as a result of work performed by any Licensee. The City shall have NCA named as an additional insured on any policies of insurance covering work by any Licensee hereunder. Licensees shall take such precautions as are necessary and appropriate to protect the health and safety of all persons on the Landfill and shall conduct work hereunder so as to minimize disruption to the homeowners of the NCA. Except for re- landscaping work that is to be paid for and completed by the NCA, as addressed elsewhere Page 10 of 21 0 0 herein, the City shall promptly repair any physical damage caused by exercise of this License and shall restore all disturbed property at the NCA to its condition immediately prior to entry by Licensees. 7. NCA's Authority to Assess. The NCA represents that it has authority to assess its members for the obligations it is incurring under this Settlement Agreement, and has undertaken or will undertake all steps necessary under California law and/or all relevant governing documents for the NCA, including the CC &Rs. Furthermore, the NCA recognizes that by signing this Settlement Agreement it is obligated to assess its membership for the costs necessary to pay for the Final SOW, O &M, and any other obligation(s) arising out of this Settlement Agreement. Recordation of the Memorandum of Settlement and License Agreement, as discussed, above, provides record notice to all current and future NCA members of the obligations of this Settlement Agreement. The NCA will also take all necessary actions to provide current members with actual notice of the terms of this Settlement Agreement within 30 days of execution hereof. 8. Equal Benefits of Third Party Monies. The Parties agree to share equally the proceeds of any third -party funding or reimbursements for any mutually beneficial work done pursuant to this Settlement Agreement. Both Parties agree to use good faith efforts to explore opportunities for third -party funding such as grant. 9. Dismissal of the Action. Within ten (10) days of the effective date of this Settlement Agreement, the NCA will dismiss the Action with prejudice. If for reasons beyond control of the Parties, the court does not accept a second dismissal with prejudice, the previously filed dismissal of the Action without prejudice shall be permanently deemed for all purposes a dismissal with prejudice. Page 11 of 21 0 10. Mutual Releases. The Parties hereby release and forever discharge each other, their members, predecessors in interest, successors in interest, subsidiaries and/or affiliates, and their respective members, officers, employees, directors, partners, shareholders, employers, agents, accountants, attorneys, insurance carriers, sureties, representatives, independent contractors, consultants and/or advisors, past, present and fixture, of and from all claims or defenses that have been or could have been asserted in the Action, with the exception of third - party liability, if any, which is not addressed or resolved in this Settlement Agreement, and compliance with this Settlement Agreement. 11. Waiver. With respect to the releases contained. herein, the Parties hereto expressly waive any rights or benefits available under 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." The Parties acknowledge consent to this provision and understanding thereof by initialing this provision: NCA ; City 12. Termination. It is agreed that this Settlement Agreement shall govern the responsibilities of the Parties with respect to regulation of the Landfill. This Settlement Agreement does not address or resolve any issues related to non - Landfill gases or wastes. If during the course of this Settlement Agreement, the relevant regulatory agencies grant the Landfill closure or otherwise confirm that no further Investigation or O &M is necessary for LFG, the LFG system, or the Landfill generally, this Settlement Agreement shall terminate. Non - Landfill reasons for a regulatory agency refusing to "close" the site, for example, naturally - occurring gases, shall not preclude the termination of this Settlement Agreement. Upon such a Page 12 of 21 closure determination, the Parties will share equally the reasonable and necessary costs of permanent site closure. Either Party may seek a determination of the closure status pursuant to the arbitration procedures set forth below. 13. Expedited Mediation - Arbitration. The Parties agree to an expedited, non- litigation procedure whereby any disputes as between them related to the Final SOW, O &M, or any topic addressed in the Settlement Agreement (individually or collectively "Arbitration Topics "), can be resolved efficiently and fairly. The Parties agree upon the following expedited mediation - arbitration process to accomplish this goal. A. Mediation. The Parties agree to initially take all disputes hereunder to mediation before any mutually acceptable mediator, including any Initial Arbitrator or Successor Arbitrator, as defined below. The Parties agree to employ good faith efforts to resolve any such dispute through mediation. The Parties agree to commence mediation within 30 days of the date of any notice of any dispute unless the Parties mutually agree to a different deadline for commencing mediation. B. Arbitration. If mediation is unsuccessful, then the Parties may elect to take the dispute to either Informal Arbitration or Formal Arbitration, as defined above and subject to the procedures set forth below. A Party electing arbitration must provide notice of this election of either Informal or Formal Arbitration within 15 days of the conclusion of the mediation. Upon receipt of notice of an election of Informal Arbitration, the other Party has 10 days within which it may elect Formal Arbitration by written notice. Once one Party elects Formal Arbitration, the other Party is bound by this election and shall proceed via this process. The arbitration must commence within 30 days of the last notice of election of arbitration unless the Parties mutually agree to a different deadline for commencing arbitration. Page 13 of 21 0 0 (1) Arbitrator. The Parties agree to the Honorable John Leo Wagner (Ret.) of Judicate West as the Initial Arbitrator with continuing jurisdiction from the effective date of this Settlement Agreement. If the Initial Arbitrator refuses or can no longer reasonably serve in this role, the Parties shall work cooperatively to select Successor Arbitrator(s), who shall be vested with all powers of the Initial Arbitrator. If the Parties cannot jointly agree upon the Successor Arbitrator(s), the Party seeking appointment of a Successor Arbitrator shall apply to a court of competent federal jurisdiction within the County of Orange, California to appoint one (which appointment may not be appealed). The other Party shall join in this application. The Initial Arbitrator and Successor Arbitrator(s) shall be collectively referred to as the "Arbitrator." of Orange, California. (2) Venue. All arbitrations hereunder shall occur within the County (3) Powers. The Arbitrator shall have the power to establish all procedural rules regarding conduct of any given arbitration with the overriding goal being to efficiently, fairly, and finally resolve any dispute concerning an Arbitration Topic. For example, the Arbitrator may allow concise briefings, testimony by declaration, phone, or in person, none of these, or any combination. When applying and interpreting substantive law, the Arbitrator shall be bound by all applicable laws. If Formal Arbitration is elected, the Arbitrator shall issue a written reasoned decision that includes findings of fact consistent with the record. While arbitrations shall proceed with each Party paying half of the Arbitrator's fees and all of its own costs, the Arbitrator shall have the discretion in any given arbitration to award, upon finding that a Party acted unreasonably, reimbursement of the other Party's half paid for the Arbitrator's fees and all or part of actually- incurred reasonable attorneys' fees and costs (excluding for City employee time). The Arbitrator may order payment of monies, grant injunctive relief, award Page 14 of 21 • • compensation for damages related to any Arbitration Topic, and/or impose any additional necessary remedy at law or equity. (4) Effect of Award. The Arbitrator's decision on any dispute ( "Award ") shall be binding upon all Parties unless one or both Parties elect to appeal the Award pursuant to a Formal Arbitration. The Award issued pursuant to Formal Arbitration may be appealed, pursuant to the procedures set forth below, within 30 days of receipt of the final Arbitrator's Award or unless the Parties mutually agree in writing to a different deadline for commencing the appeal of the Award. C. Appeal to Neutral Arbitration Panel. If either. Party is not satisfied with the results of the Arbitration, such Party may appeal the decision as provided herein only. The appeal shall be to a panel of three neutral arbitrators, utilizing the Center for Public Resources Institute for Dispute Resolution's ( 'CPR's appellate procedures that are in existence at the time the appeal arises. To the extent that the CPR appellate procedures are not then available, the Parties shall use the CPR appellate procedures that existed on the effective date of this Settlement Agreement or may use another professional alternative dispute resolution organization or rules acceptable to both Parties. If the Parties cannot jointly agree upon the neutral arbitrator panel, the Party seeking the appeal shall apply to a court of competent federal jurisdiction within the County of Orange, California to appoint one (which appointment may not be appealed). The other Party shall join in this application. While the appealing Party must initially pay for all arbitration costs and fees (excluding the other Party's attorneys' fees), the arbitration panel shall have the discretion in any given arbitration to award, upon finding that a Party acted unreasonably, reimbursement of the other Party's half paid for the arbitration panel's fees and all or part of actually - incurred reasonable attorneys' fees and costs (excluding for either Page 15 of 21 n u n ►J Parties' employee or staff time). All agreed -upon terms governing the underlying Arbitration will similarly govern the appeal. (1) Standard for Appeal of Arbitration Award. The Award shall be appealable if one of the following applies: The Award contains material and prejudicial errors of law of such a nature that it does not rest upon any appropriate legal basis; The Award is based upon factual findings clearly unsupported by the record; or The Award is subject to one or more of the grounds set forth in Section 10 of the Federal Arbitration Act (9 U.S.C. § 10) for vacating an award. (2) Effect of Award on Appeal. The ruling of the arbitration panel is final, immediately enforceable, and non - appealable. 14. Notices. Notices concerning this Settlement Agreement may be sent by certified mail, facsimile, electronic mail, or other reliable, traceable method of delivery to the representatives of the Parties as set forth below. Notice is effective upon receipt. Parties shall notify one another in writing of any changes to the representative contact information. A. Notice to the NCA shall be effective through its property manager and legal counsel, who currently may be contacted as follows: c/o Villageway Management, Inc. 22 Mauchly Avenue Irvine, California 92618 (949) 450 -1515 (949) 585 -0146 Fax e -mail: CBO @villageway.com John E. Van Vlear, Esq. VOSS, COOK & THEL LLP 895 Dove Street, Suite 450 Newport Beach, California 92660 (949) 435 -0225 (949) 435 -0226 Fax e -mail: vv @vctlaw.com Page 16 of 21 0 0 B. Notice to the City shall be effective through its city manager and city attorney, who currently may be contacted as follows: City of Newport Beach City of Newport Beach c/o Robin L. Clauson, Esq. c/o Mr. Homer Bludau City Attorney City Manager 3300 Newport Blvd. 3300 Newport Blvd. Newport Beach, CA 92663 -3884 Newport Beach, CA 92663-3884, (949) 644 -3131 (949) 644 -3000 (949) 644 -3139 Pax (949) 644 -3020 Fax e -mail: rclauson @city.newport- e-mail: hbludau @city.newport- beach.ca.us beach.ca.us GENERAL PROVISIONS 15. No Admission. This Settlement Agreement is a compromise of disputed, claims and as such, neither the payment of any consideration hereunder nor anything contained in this Settlement Agreement shall be interpreted or construed to be an admission on the part of, nor to the prejudice of, any Party hereto. 16. No Third Party Benefits. This Settlement Agreement is made for the sole benefit of the Parties and no other person or entity shall have any rights or remedies under or by reason of this Settlement Agreement unless otherwise expressly provided for herein. 17. Entire Agreement. This Settlement Agreement constitutes the entire understanding between the Parties as to the subject matter hereof and may not be modified or amended. 18. Approvals, Consents, Waivers. No approval, acceptance, or consent of a Party required by any provision of this Settlement Agreement, nor any waiver of any required approval, acceptance, consent or condition, shall be deemed to have occurred until set forth in writing, signed by the Party, and delivered to the other Party. Any consent or approval by a Page 17 of 21 • i Party in any single instance shall not be deemed to be or construed or approved in any like matter arising at a subsequent date. 19. Cooperation/Documentation. The Parties will, at their own cost and expense, execute such other instruments and documents as may be reasonably necessary for the purposes of and to effectuate the terms of this Settlement Agreement. 20. Successors and Assigns. Subject only to the express restrictions contained in this Settlement Agreement, all of the rights, duties and obligations contained in this Settlement Agreement shall inure to the benefit of and be binding upon the Parties, and their successors and assigns. 21. Attorneys' Fees and Costs. Each Party shall bear its own costs and attorneys' fees, and any other expenses, related to the Action and all matters subject to resolution by this Settlement Agreement, including such costs, fees, and expenses incurred for administrative proceedings, litigation, and mediation. 22. Administrative Costs. Each Party shall bear its own costs and expenses, including staff, employee, attorney, and property management costs and fees related to the administration of each Party's obligations under this Settlement Agreement. 23. Headings. Headings herein are used for convenience of reference only and do not define or limit the scope of provisions of this Settlement Agreement. 24. Severabilitv. If any provision of this Settlement Agreement, or part thereof, is held invalid, void or voidable as against public policy or otherwise, the invalidity shall not affect other provisions, or parts thereof, which may be given effect without the invalid provision or part. To this extent, the provisions, and parts thereof, of this Settlement Agreement are declared to be severable. Page 18 of 21 E 25. Reliance. Each Party declares and represents that this Settlement Agreement is being made without reliance upon any statement or representation not contained herein of any other Party, or of any agent or attorney of any other Parry. Each Party represents that it has, reviewed each term of this Settlement Agreement with its counsel and that it shall not dispute the validity of this Settlement Agreement on the ground that it did not have advice of its counsel. 26. Controlling Law and Venue. This Settlement Agreement is being made and delivered and is intended to be performed in the City of Newport Beach, County of Orange, State of California and the execution, validity, construction, and performance of this Settlement Agreement shall be construed and enforced in accordance with the laws of the United States and State of California in a court of competent federal jurisdiction to the extent federal jurisdiction exists. 27. Warranties of Authorities and Against Prior Assignments. Each person who signs this Settlement Agreement on behalf of a Party wan-ants and represents to every other Party that he or she has the authority to make this Settlement Agreement on behalf of the other Party for which he or she signs. Each of the Parties to this Settlement Agreement represents and warrants that it is the sole and exclusive owner of the rights, claims and causes of action herein released and that it has not heretofore assigned or transferred or purported to assign or transfer to any other person or entity any obligations, rights, claims, or causes of action herein released. 28. Counterparts. This Settlement Agreement may be signed in counterparts, each of which shall be deemed an original, and not merely a recital. This Settlement Agreement supersedes all prior representations and agreements, if any, between the Parties or their legal counsel regarding this subject matter. Page 19 of 21 0 0 29. Inte agr tion. This is an integrated agreement. The terms of this Settlement Agreement are contractual, and not merely a recital. This Settlement Agreement supersedes all prior representations and agreements, if any, between the Parties or their legal counsel regarding this subject matter. 30. Knowing, Free and Voluntary Making. The Parties have read the Settlement Agreement, and acknowledge that they know and fully understand its contents. The Parties acknowledge that they have fully discussed this Settlement Agreement with their respective attorneys and fully understand the consequences of this Settlement Agreement. The Parties have relied and are relying solely upon their own judgment, belief and knowledge of the nature, extent, effect and consequences relating to this Settlement Agreement and/or upon the advice of their own legal counsel concerning the legal and income tax consequences of this Settlement Agreement. The Parties will execute the Settlement Agreement freely and voluntarily. Page 20 of 21 .. • • 31. Effective Date: This Settlement Agreement shall be effective upon the date that the last person listed below executes the Settlement Agreement. Dated: By: (name) NEWPORT CONDOMINIUM ASSOCIATION Dated: By: (name) (title) CITY OF NEWPORT BEACH APPROVED AS TO FORM: Dated: CITY OF NEWPORT BEACH Dated: May 26th Final Settlement Agmmnent.DOC By: Robin L. Clauson, Esq. City Attorney VOSS, COOK & THEL LLP By: John E. Van Vlear, Esq. VOSS, COOK & THEL LLP Attorneys for NEWPORT CONDOMIUM ASSOCIATION Page 21 of 21 0 0 EXHIBIT "A" • RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Newport Beach c/o Robin L. Clauson, Esq. City Attorney 3300 Newport Blvd. Newport Beach, CA 92663 -3884 u (Space Above For Recorder's Use) MEMORANDUM OF SETTLEMENT AND LICENSE AGREEMENT THIS MEMORANDUM OF SETTLEMENT AND LICENSE AGREEMENT ( "Memorandum ") is made this _day of , 2005, by and between NEWPORT CONDOMINIUM ASSOCIATION, a California non -profit mutual benefit corporation ( "Grantor's, and the CITY OF NEWPORT BEACH, a municipal corporation ( "Grantee "). RECITALS: A. Grantor is the homeowners association for that certain real property in Orange County, California, commonly known as Newport Terrace the common areas, recreation areas, and open space areas of which are more particularly described on Attachment "1" which is attached hereto and incorporated herein by this reference ( "Land "). B. Grantor desires to grant to Grantee, its agents, contractors and any other person acting on the Grantee's behalf, and Grantee desires to acquire from Grantor, an irrevocable license to access the Land as set forth below. AGREEMENT: THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, Grantor and Grantee agree as follows: 1. Grant of License. Grantor hereby grants to Grantee, its agents, contractors and any other person acting on the Grantee's behalf an irrevocable license to access the Land in accordance with the terms and conditions of that certain unrecorded Settlement and License Agreement of even date herewith ( "Settlement and License Agreement ") executed by Grantor and Grantee, attached as Attachment "2" hereto, all of which terms 0 0 and conditions are incorporated herein by this reference. Unless otherwise expressly provided herein, all capitalized terms and phrases in this Memorandum shall have the same meanings as are given to such terms in the Settlement and License Agreement. 2. Interpretation. The purpose of this Memorandum is to give notice of the existence of the respective rights and responsibilities of Grantor and Grantee under the Settlement and License Agreement with respect to the operation, maintenance, repair, and improvement of the Landfill as set forth within the Settlement and License Agreement. If there is any inconsistency between the provisions of this Memorandum and the provisions of the Settlement and License Agreement, the provisions of the Settlement and License Agreement shall control. This Memorandum is executed by Grantor and Grantee as of the date first written above. "GRANTEE" "GRANTOR" CITY OF NEWPORT BEACH, a municipal corporation By: _ Name: Title: By: _ Name: Title: NEWPORT CONDOMINIUM ASSOCIATION, California non -profit mutual benefit corporation By: Name: Title: By: Name: Title: 0 0 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On before me, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the . entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (SEAL) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , before me, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (SEAL) 0 Attachment 1 to Memorandum of Settlement and License Agreement Lot 2 of Tract No. 7989, as shown on a map recorded in Book 323, Pages 11 to 16, inclusive, of Miscellaneous Maps, records of Orange County, California; Lot 1 and Lot 3 of Tract No. 7989, as shown on a map recorded in Book. 323, Pages 11 to 16, inclusive, of Miscellaneous Maps, records of Orange County, California, with the exception of the Units thereon; Lots 1 through 6,. inclusive, of Tract No. 8335, as shown on a map recorded in Book 352, Pages 31 to 35, inclusive with the exception of the Units thereon. Attachment 2 to Memorandum of Settlement and License Agreement [Settlement and License Agreement dated , 2005] CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless, MMC October 25, 2004 Mr. Gordon Eliason Carl Warren & Company 750 The City Drive, Suite 400 Orange, CA 92868 Attached .is a summons from John E. Van Vlear, Esq. regarding the claim for damages received from the Newport Condaminiu n Association on May 7, 2003, and denied on May 15, 2003 (File # S 114625 GE). Sincerely, A" LaVonne M. Harkless, MMC City Clerk Jh Attachment cc: City Attorney Risk Manager File/ 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: 1949) 644 -3039 • www.city.newport- beach.ca.us John E. Van VIe Voss, Cook & T 895 Dove Street, Su Newport Beach, CA 92660 949/435 -0225 '04 OCT 25 AB :53 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF UA bX,%T� G ERK Newport Condominium Association, a California non - profit mutual benefit corporation, Plaintiff(s) V. City of Newport Beach, a California Charter City, Defendant(s) TO: THE ABOVE -NAMED DEFENDANT(S): CASE NUNMER. CVSACV04 -1204 DOC (1VILGx) ►`Ii11 INCS7`►Ey YOU ARE HEREBY SUMMONED and required to file with this court and serve upon plaintiffs attorney John. E. Van Vlear, Esc. whose address is: Voss, Cook L Thel LLP 895 Dove Street, Suite 4.50 Newport Beach, CA 92660 an answer to the ® complaint amended complaint counterclaim 0 cross - claim which is herewith served upon you within 2 0 days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Date: October 13, 2004 CLERK, U.S. DISTRICT COURT 0 1144 SUMMONS CV -1A (01/01) CCD -1A 2 3 4 6 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 John E. Van Vlear, Esq. (SBN 132098) Daniel S. Kippen, Es (SBN 211582) VOSS, COOK & TH - LLP 895 Dove Street, Suite 450 Newport Beach, California 92660 -2998 (949) 435 -0225 FILED OCT iI R,AL €31ST. C.f CALI SANTA ANA Attorneys for Plaintiff NEWPORT CONDOMINIUM ASSOCIATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ORANGE COUNTY DIVISION NEWPORT CONDOMINIUM. ASSOCIATION, a California non- profit mutual benefit corporation; PLAINTIFF, V. CITY OF NEWPORT BEACH, a California Charter City; DEFENDANT. -1- SACV04 -1204 DOC (MLGx) CASE NO. COMPLAINT FOR (1) CONTRIBUTION (CERCLA § 113(f)) (2) II K §CTIVE RELIEF ) (3) DECLARATORY RELIEF (28 U.S.C. §§.2201,2202) Supplemental Turisdiction State Causes of Action (28 U.S.C. § 1367(a)) (4) RESPONSE COSTS UNDER CALIFORNIA HAZARDOUS SUBSTANCE ACCOUNTING ACT (Cal. Health and Safety Code § 25363(e)) (5) DECLARATORY RELIEF (Cal. Code of Civil Procedure § 1060) 9 1 Plaintiff NEWPORT CONDOME,,TIUM ASSOCIATION, a California 2 non -profit mutual benefit corporation ( "PLAINTIFF "), alleges as follows: 3 TURISDICTION 4 1. PLAIN'I'IFF's first claim for relief in this action is for the 5 recovery of response costs, by contribution, under § 113 of the 6 Comprehensive Environmental Response, Compensation, and Liability Act 7 ( "CERCLA "), 42. U.S.C. § 9601 et seq, as amended by the Superfund 8 Amendments and Reauthorization Act of 1986, Pub: L. No. 99- 499,100 Stat. 9 1613, 42 U.S.C. § 9613 (1986) and the Small Business Liability Relief and 10 Brownfields Revitalization Act of 2002. The second claim is for injunctive 11 relief under the Resource Conservation and Recovery Act ( "RCRA "), 42 12 13 14 15 16 17 18 19 20 21 22 23 24 U.S.C. § 6903, et seq. The third claim is for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202: This court has jurisdiction pursuant to these laws. 2. Plaintiff's fourth claim for relief. is for recovery of response costs under § 25363(e) of the California Health and Safety Code. Plaintiffs fifth claim is for declaratory relief. This Court has supplemental jurisdiction over Plaintiffs state law claims under 28 U.S.C. § 1367(a). These state law claims form part of the same case or controversy as the federal claims in that they assert liability for the same property contamination. The Court should exercise supplemental jurisdiction since the claims do not raise novel or complex issues of state law, the state claims do not substantially predominate over the federal claims, the Court has not dismissed the federal claims, and there are no exceptional circumstances or -2- 1 other compelling reasons for declining jurisdiction. 2 VENUE 3 3. This action involves a site located generally at the intersection 4 of 19th Street and Balboa Avenue in Newport Beach, California, Township 5 65, Range 10 West, Section 17,'/4 Section SW 1/4 of the SE 1/4, San Bernardino 6 Baseline and Meridian (the "PROPERTY "). Venue is proper in this district 7 pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. § 9613(b) because the 8 PROPERTY is located within this district in Orange County, California; the g releases, disposals and other acts that gave rise to these claims, as more 10 fully defined herein, occurred in this district; and the defendant sued 11 herein has in the past and is now doing business or is otherwise located in 12 this district. 13 PARTIES 14 4. PLAINTIFF is the homeowners' association that owns the 15 relevant portions of the PROPERTY, and is stack with paying for 16 environmental response costs at the PROPERTY, which it did not cause .or 17 contribute to. 18 5. PLAINTIFF is informed and believes, and on that basis alleges, 19 that Defendant CITY OF . NEWPORT BEACH ( "CITY" and /or 20 "DEFENDANT ") is a California charter city and is a former owner and 21 operator of Newport City Dump No. 1 ( "LANDFILL ") as further described 22 herein. 23 6. PLAINTIFF is informed and believes, and on that basis alleges, 24 that DEFENDANT is a "person" as defined in CERCLA § 10.1(21)142 U.S.C. -3- 1 2 3 4 5, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 § 9601(21), RCR.A § 1004(15), 42 U.S.C. § 6903(15), and California Health I I and Safety Code § 25319. GENERAL ALLEGATIONS 7. PLAINTIFF is informed and believes, and on that basis alleges, that hazardous substances including, but not limited to, vinyl chloride, methylene chloride,. hydrogen sulfide, methane, dichlorodifluoromethane, and acetone (collectively "HAZARDOUS SUBSTANCES ") have been deposited, stored, disposed of, placed, and /or have otherwise come to be located at the LANDFILL, the PROPERTY, and certain buildings; structures, installations, and /or equipment appurtenant thereto. The HAZARDOUS SUBSTANCES are /or contain one or more "hazardous substance" as that term is defined by CERCLA § 101(14), 42 U.S.C. § 9601(14), and California Health and Safety Code § 25316. As such, the LANDFILL, the PROPERTY and the appurtenances are each a "facility" as defined in CERCLA § 101(9), 42 U.S.C. § 9601(9), and California Health and Safety Code § 25310. 8. PLAINTIFF is informed and believes, and on that basis alleges, that HAZARDOUS SUBSTANCES have been, and are continuing to be in some instances, spilled, leaked, pumped, poured, emitted, emptied,. discharged, injected, escaped, leached, dumped, and /or disposed into the environment, including the air, soil, and /or groundwater, at or around the LANDFILL and the PROPERTY, constituting one or more "release" as defined in CERCLA § 101(22), 42 U.S.C. § 9601(22), and California Health and Safety Code § 25320 (collectively "RELEASES "). -4- 1 9. PLAINTTIFF is informed and believes, and on that basis alleges, 2 that DEFENDANT handled, stored, treated, transported, and disposed; 3 and /or contributed to the handling, storage, treatment, transportation, and 4 disposal,. of "hazardous waste" (as defined by RCRA § 1004(5), 42 U.S.C. § 5 6903(5)) and "solid waste" (as defined by RCRA § 1004(27), 42 U.S.C. § 6 6903(27)) (collectively "WASTES ") at the LANDFILL. 7 10. PLAINTIFF is informed and believes, and on that basis alleges, g . that from approximately 1953 until approximately 1965 the CITY owned g and /or operated the LANDFILL at the time of disposal of the 10 HAZARDOUS SUBSTANCES and WASTES therein. CTTY, and /or its 11 agents and contractors, operated the LANDFILL in such a manner as to 12 allow the formation of dangerous ponds at the PROPERTY as depicted in 13 photographs taken by the Costa Mesa Police Department. 14 11. PLAINTIFF is informed and believes, and on that basis alleges, 15 that some or all of the gases and hydrocarbon substances at the PROPERTY 16 are owned by CITY given the fact that the CITY retained all rights to such 17 when it transferred some or all of the PROPERTY and/or LANDFILL in 18 1973. 19 12. PLAINTIFF is informed and believes, and on that basis alleges, 20 that the HAZAROUS SUBSTANCES and WASTES from the LANDFILL's 21 operation are of the same type now contaminating the LANDFILL and the 22 PROPERTY. 23 13. On June 20, 2002, the Orange County Health Care Agency 24 ( "OCHCA" ), the Local Enforcement Agency, instituted a civil enforcement -5- 1 2 3 4 5 6 7 8 9 10 11 12' 13 14 15 16 17. 18 19 20 21 22 23 24 i 0 action against PLAINTIFF requiring various . environmental response actions. 14. As a result of DEFENDANT's actions described above, PLAINTIFF has incurred costs responding to the RELEASES and threatened RELEASES of HAZARDOUS SUBSTANCES and WASTES from and at the LANDFILL and the PROPERTY. PLAINTIFF's costs include, but are not limited to, $40,0001 for a 2003 -2004 investigation and assessment of the LANDFILL Gas Collection System at the insistence of the OCHCA. Overall, PLAINTIFF has incurred at least $690,184 since 1992 in environmental /response costs related to the LANDFILL in order to protect human health and the environment from continued RELEASES of HAZARDOUS SUBSTANCES and WASTES. Collectively all such costs, including those set forth herein, are referred to herein as "RESPONSE. COST'S." 15. PLAINTIFF's RESPONSE COSTS were necessary and were incurred consistent with the National Contingency Plan ( "NCP "). 16. To date, the CITY has not reimbursed PLAINTIFF any of its I RESPONSE COSTS. FIRST CLAIM FOR CONTRIBUTION UNDER CERCLA 9 113 {f) 17. PLAINTIFF realleges and incorporates by reference the allegations set forth in all preceding paragraphs, as applicable, as though CITY also paid approximately $40,000. -6- 1 fully set forth herein. 2 3 4 5 6 7 8 9 10! 11 12 13 14. 15 16 17 18 19 20 21 22 23 24 F� 18. DEFENDANT is liable or a potentially liable party under CERCLA § 107(a), 42 U.S.C. § 9607(a). 19. The RELEASES by DEFENDANT have caused PLAINTIFF to incur necessary RESPONSE COSTS consistent with the NCP. 20. PLAINTIFF has satisfied any and all conditions precedent under CERCLA, or otherwise, to the undertaking of response actions and the incurring of RESPONSE COSTS at the PROPERTY and to the recovery of such RESPONSE COSTS from DEFENDANT, including providing a copy of this complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency as required by CERCLA § 113(1), 42 U.S.C. § 9613(1). 21. PLAINTIFF's incurred and future RESPONSE COSTS represent more than its fair, equitable, or proportional share. In paying more than its fair, equitable, or proportional share of RESPONSE COSTS; PLAINTIFF has discharged a common liability and obligation of DEFENDANT. 22. DEFENDANT is liable under CERCLA § 113(f), 42 U.S.C. § 9613(f), for contribution to PLAINTIFF. 23. The equitable factors favoring an allocation to DEFENDANT, and not to PLAINTIFF, of all of the RESPONSE COSTS include, but are not limited to: a) Causation. One of CERCLA's main purposes is to assure that parties responsible for hazardous substances bear the cost of remedying the conditions they created, the so 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23_ 24 called "polluter -pays" principle of the law. Here, DEFENDANT owned, operated, and /or arranged for disposal of HAZARDOUS SUBSTANCES into the LANDFILL therefore causing the RELEASES. b) Culpability. PLAINTIFF is informed and believes, and.on that basis alleges, that DEFENDANT, as owner and operator of, and /or arranger for disposals to the LANDFILL, knew or should have known of the risks and hazards involved in the LANDFILL. c) Benefits Received By The Responsible Party. PLAINTIFF is informed and believes, and on that basis alleges, that as owner and operator of, and/or arranger for disposals to, the LANDFILL, DEFENDANT benefited financially, and in other ways, from such actions. d) Ability To Pay. PLAINTIFF is informed and believes, and on that basis alleges, that the CITY is one of the wealthiest per capita municipalities in California. On the other hand, PLAINTIFF is a struggling condominium association that is so burdened by the RESPONSE COSTS that it cannot financially respond to other needs. e) Efforts in Conducting Response Actions. PLAINTIFF is informed and believes, and on that basis alleges, that apart from paying for approximately half of the 2003 -2004 assessment and investigation of the LANDFILL's Gas -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Collection System, the CITY has not conducted any environmental response actions at the LANDFILL. On the other hand, PLAINTIFF has incurred extensive RESPONSE COSTS related to the LANDFILL. SECOND CLAIM FOR INTUNCTIVE RELIEF UNDER RCRA q 7002(a)(1)(B) 24. PLAINTIFF realleges and incorporates by reference the allegations set forth in all preceding paragraphs, as applicable, as though fully set forth herein. 25. DEFENDANT's actions in causing and contributing to the RELEASES, and failures to abate the RELEASES, have caused or contributed to the risk of an imminent and substantial endangerment to health and the environment because of the presence of HAZARDOUS SUBSTANCES and WASTES at the LANDFILL and the PROPERTY. 26. PLAINTIFF has requested that DEFENDANT perform or I finance required RESPONSE ACTIONS at the LANDFILL and the PROPERTY, including investigation of the scope and extent of contamination, and implementation of appropriate future actions to abate the endangerment. Thus far, DEFENDANT has refused to so perform or finance such actions. 27.. PLAINTIFF has satisfied any and all conditions precedent under RCRA, or otherwise, including giving to DEFENDANT the requisite 90 -day notices of intent to file suit, pursuant to RCRA § 7002(b)(2)(A), 42 -9- 0 9 .1 U.S.C. 6972(b)(2)(A), and providing a copy of this complaint to the 2 Attorney General of the United States and to the Administrator of the g Environmental Protection Agency pursuant to RCRA § 7002(b)(2)(F), 42 4 U.S.C. § 6972(b)(2)(F). 5 28. PLAINTIFF seeks mandatory ,preliminary and permanent 6 injunctive relief directing DEFENDANT, who is responsible for the 7 presence of the HAZARDOUS SUBSTANCES and WASTES to undertake g all necessary and appropriate response actions at the LANDFILL and g PROPERTY, as required by the OCHCA the Local Enforcement Agency or 10 as otherwise proper to protect health and the environment, including 11 operation and maintenance of the Gas Collection System at the 12 PROPERTY. The Court has jurisdiction pursuant RCRA § 7002(a), 42 13 U.S.C. § 6972(a), to order both mandatory preliminary and permanent 14 injunctive relief as requested herein. 15 29. PLAINTIFF requests an award of costs of litigation pursuant to 16 RCRA § 7002(e), 42 U.S.C. § 6972(e). 17 18 THIRD CLAIM FOR DECLARATORY RELIEF 19 UNDER CERCLA $113(8)(2); 28 U.S.C. qIJ 2201, 2202 20 30. PLAINTIFF reaIleges and incorporates by reference the 21 allegations set forth in all preceding paragraphs, as .applicable, as though 22 fully set forth herein. 23 31. There has arisen and now exists an actual controversy between 24 PLAINTIFF and DEFENDANT relating to the liability and responsibility of -10- 1 DEFENDANT for RESPONSE COSTS and actions necessary to abate the 2 presence of HAZARDOUS SUBSTANCES and WASTES at the LANDFILL 3 and the PROPERTY. 4 32. The facts giving rise to the actual controversy among the.parties 5 and establishing the right to declaratory relief have already occurred. 6 33. A judicial determination of the liability of DEFENDANT is 7 necessary and appropriate at this time in order that PLAINTIFF may g ascertain its rights against DEFENDANT. 9 34. Pursuant to CERCLA §§ 113(b) and 113(8)(2), 42 U.S.C. §§ 10 9613(b) and 9613(g)(2), RCRA § 7002(a), 42 U.S.C. § 6972(a), and the, 11 Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, PLAINTIFF is entitled 12 to a declaration from the Court that DEFENDANT is liable under CERCLA 13 for the RESPONSE COSTS and that PLAINTIFF is entitled to contribution 14 from DEFENDANT for such, and that DEFENDANT is liable under RCRA 15 for abating the RELEASES and risk of imminent and substantial 16 endangerment caused by the HARDOUS SUBSTANCES and WASTES at 17 the LANDFILL. 18 35. PLAINTIFF further requests that this Court, after entering the 19 declaratory judgment prayed for herein, retain jurisdiction over this action 2p to grant PLAINTIFF such further relief against DEFENDANT as is 21 necessary and proper to effectuate the Court's declaration. 22 23 2411 /// 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23' 24 SUPPLEMENTAL TURISDICTION STATE CAUSES OF ACTION (28 U.S.C. § 1367(a)) FOURTH CLAIM FOR RESPONSE COSTS UNDER HEALTH AND SAFETY CODE .4 25363(e) 36. PLAINTIFF "realieges and incorporates by reference the allegations set forth in all preceding paragraphs, as applicable, as though fully set forth herein. 37. California Health and Safety Code § 25363(e) provides for an action by a private party who has incurred removal or remediation costs under the Hazardous Substance Account Act, Health and Safety Code §§ 25300 et seq. Pursuant to those sections, such a private party may seek contribution or indemnity for those costs from any .person who is a liable person within the meaning of Health and Safety Code § 25323.5. 38. PLAINTIFF is informed and believes, and on that basis alleges, I that . DEFENDANT is a person liable within the meaning of Health and Safety Code § 25323.5. 39. PLAINTIFF has satisfied any and all conditions precedent under California law or otherwise to the undertaking of response actions and the incurring of remedial action costs at the PROPERTY and to the recovery of such costs from DEFENDANT. FIFTH CLAIM FOR DECLARATORY RELIEF UNDER CALIFORNIA C.C.P: ,i 1060 40. PLAINTIFF realleges and incorporates by reference the allegations set forth in all preceding paragraphs, as applicable, as though 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 fully set forth herein. 41. An actual controversy exists between PLAINTIFF and DEFENDANT concerning the liability and responsibility of DEFENDANT for RESPONSE COSTS and actions necessary to abate the presence of HAZARDOUS SUBSTANCES. and WASTES at the LANDFILL and the MrsTrERMS 42. The facts giving rise to the:actual controversy among the parties and establishing the right to declaratory relief have already occurred. 43. A judicial determination of the liability of DEFENDANT is necessary and appropriate at this time in order that PLAINTIFF may ascertain its rights against DEFENDANT. 44. PLAINTIFF desires a judicial declaration and determination of PLAINTIFF's and DEFENDANT's respective rights and duties, and specifically, that DEFENDANT is. responsible under the Hazardous Substance Account Act, Health and Safety Code §§ 25300 et seq., for the RESPONSE COSTS and that PLAINTIFF is entitled to contribution from DEFENDANT for. such. Such a declaration is appropriate at this time so that the parties may determine their rights and duties before PLAINTIFF is requited to incur the costs and suffers financial harm resulting therefrom. 45. PLAINTIFF further requests that this Court, after entering the declaratory judgment prayed for herein, retain jurisdiction over this action to grant PLAINTIFF such further relief against DEFENDANT as is necessary and proper to effectuate the Court's declaration. 1 2 3� 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WHEREFORE, PLAINTIFF prays that judgment be entered against DEFENDANT as follows: 1. For. a declaration and judgment that DEFENDANT is liable under CERCLA and the California Hazardous Substance Accounting Act for the RESPONSE COSTS and that PLAINTIFF is entitled to contribution from DEFENDANT for such, and that DEFENDANT is liable under. RCRA for abating the RELEASES and risk of imminent and substantial endangerment caused by the HAZARDOUS SUBSTANCES and WASTES at the LANDFILL; 2. For a mandatory injunction requiring DEFENDANT, pursuant to RCRA, to immediately and permanently undertake all necessary and appropriate response actions at the LANDFILL and PROPERTY, as required by the Local Enforcement Agency the OCHCA, other appropriate agency(ies), or as otherwise proper to protect health and the environment, 3. For prejudgment interest on the costs incurred by PLAINTIFF at the maximum rate allowed by law from the time PLAINTIFF incurred the RESPONSE COSTS; 4. For retention of jurisdiction of this action by this Court after entry of the requested declaratory judgment for the granting to PLAINTIFF of such further relief against DEFENDANT as may be necessary or proper to. effectuate the declaration of this Court. 5. For costs and attorneys' fees pursuant to RCRA; and 1 2 3 4 5 6 7 8 9 101 12 13, 14 15 16 17 18 19 20 21 22 23 24 I I 6. For such other and further relief as the Court may deem just and proper. DATED: October 2004 VOSS, COOK & TEEL LLP By: E. Van Vlear, Esq. Kip pen, S. Ydppen, Esq. Attorneys for Plaintiff Newport Condominium Association v� MS�N"O� nsa MN Mwvuww�ucs\W�uwnnac AA- 0 NOTICE TO COUNSEL The court has directed that the following rules be specifically called to your attention: I. Continuing Obligation to Report Related Cases (Local Rule 83- 1.3.3) II. Service of Papers and Process (Local Rule 4) III. Notice ofRightto Conseutto disposition of a Civil Case by allnited States Magistrate Judge [28 U.S.C. §636 (c) and General Order 194 -G]. I. CONTINUING OBLIGATION TO REPORT RELATED CASES Parties are under the continuing obligation to promptly advise the Court whenever one or more civil actions or proceedings previously commenced and one or more currently filed appear to be related. Local Rule 83 -1.3.3 states: "It shall be the continuing duty of the attomey in any case promptly to bring to the attention of the Court, by the filing of allotice ofRelated Case(s) pursuant to Local Rule 83 -13, all facts which in the opinion of the attorney or party appear relevant to a determination whether such action and one or more pending actions should, under the criteria and procedures set forth in Local Rule 83 -1.3, be heard by the same judge." Local Rule 83- 1.2.1. states: "It is not permissible to dismiss and thereafter refile an action for the purpose of obtaining a different judge." Local Rule 83 -1.2.2 provides: Whenever an action is dismissed before judgment and thereafter the same or essentially the same action is refiled, the latter action shall be assigned to the judge to whom the first action was assigned It shall be the continuing duty of every attorney or party appearing in such a refiled action promptly to bring the prior action to the attention of the Clerk in the Civil Cover Sheet and by filing a Notice of Related Case(s) pursuant to Local Rule 83 -1.3. IL SERVICE OF PAPERS AND PROCESS Local Rule 4-2 states: 'Except as otherwise provided by order of Court, or when required by the treaties or statutes of the United States, process shall not be presented to a United States Marshal for Service." Service of process must be accomplished in accordance with Rule 4 of the Federal Rules of Civil Procedure or in any manner provided by State Law, when applicable. Service upon the United States, an officer or agency thereof, shall be served pursuant to the provisions of FRCP 4 (i). Service should be promptlymade; unreasonable delay may result in dismissal ofthe actionunderLocal Rule 41 and Rule.4(m) ofthe Federal Rules of Civil Procedure. Proof of service or a waiver of service of summons and complaint must be filed with the court. NOTICE To COUNSEL CV -20 (1610 1) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NOTICE FROM THE CLERK The United States District Cqurtfor the Central District of California is pleased to announce the expansion of its Optical Scanning Program to include the service of criminal judgments and orders. The program allows the Office of the Clerk to transmit copies of criminal judgments and orders to attorneys of record, by Internet e-mail or facsimile within 24 hours from the date the judgment is entered on the docket HOW THE PROGRAM WORKS... • Attorneys who enroll in the program consent and agree to receive copies of criminal judgments and orders by Internet e-mail or facsimile. • Documents are transmitted by Internet e -mail in T1F format or facsimile in lieu of postal service. Internet e-mail is recommended due to its efficiency. The e-mail address should be sent to a computer that is accessed on a daily basis due to the importance and timeliness of documents that are being transmitted from the court. • Only attorneys who have been admitted to practice in the United States District Court, Central District of California and are counsel of record.for the defendant, and attorneys appearing pro hac vice are eligible to enroll_ • A one -time enrollment is all that is required to receive documents on pending cases in this district, as well as for cases filed in the future in which you are counsel of record. Attorneys are responsible for notifying the clerk's office if their fax number or e-mail address changes to ensure that documents are transmitted to the proper fax number or e-mail address. • There is no fee for the program. HOW TO GET ENROLLED... To enroll in this free program, please complete an enrollment form G -76 and return it to the address or fax it to the number indicated on the form. Forms may be obtained through the courts website at www.caed.uscourts.gov, at the clerks office, or by calling the Optical Scanning Department at (213) 894 -5474. A list of frequently asked questions concerning the Optical Scanning Program is available on the courts website. There will be a 30 day testing period which will commence very soon. Upon completion of the testing period, attorneys who have enrolled in the program will begin to receive documents by e -mail or fax transmission. If you have any other questions, please call the Optical Scanning Department at (213) 894 -5474. We look forward to providing this service to you. Thank you. Sherri R. Carter District Court Executive and Clerk of Court Preamble In its purest form, law is simply a so- cietal mechanism for achieving justice. As officers of the court, judges and law- yers have a duty to use the law for this purpose, for the good of the people. Even though "justice" is a lofty goal, one which is not always reached, when an individual becomes a member of the le- gal profession, he or she is bound to strive towards this end. gation costs and fails to advance the client's lawful interests. Perhaps just as importantly, this type of behavior causes the public to lose faith in the legal pro- fession and its ability to benefit society. For these reasons, we find that civility and professionalism among advocates, between lawyer and client, and between bench and bar are .essential to the ad- ministration of justice. The following guidelines are de- ...there is a growing sense that lawyers regard their livelihood as a business, rather than a profession. Unfortunately, many do not perceive that achieving justice is the function of law in society today. Among members of the public and lawyers themselves, there is a growing sense that lawyers re- gard their livelihood as a business, rather than a profession. Viewed in this man- ner, the lawyer may define his or her ul- timate goal as "winning" any given case, by whatever means possible, at any cost, with little sense of Whether justice is being served. This attitude manifests it- self in an array of obstinate discovery tactics, refusals to accommodate the rea- sonable requests of opposing counsel re: dates, times, and places; and other need- less, time- consuming conflicts between and among adversaries. This type of be- havior tends to increase costs of litiga- tion and often leads to the denial of jus- tice. The Central District recognizes that, while the majority of lawyers do not behave in the above - described manner, in recent years there has been a discern- ible erosion of civility and profession- alism in our courts. This disturbing trend may have severe consequences if we do not act to reverse its course. Incivil be- havior does not constitute effective ad- vocacy; rather, it serves to increase liti- Adopted on July 27, t 945 signed to encourage its, the members of the bench and bar, to act towards each other, our clients, and the public with the dignity and civility that our profession demands. In formulating these guide- lines, we have borrowed heavily from the efforts of others who have written similar codes for this same purpose. The Las Angeles County Bar Association Litigation Guidelines, guidelines issued by other county bar associations within the Central District, the Standards for Professional Conduct within the Seventh Federal Judicial Circuit, and the Texas Lawyer's Creed all provide excellent models for professional behavior in the law. We expect that judges and lawyers will voluntarily adhere to these standards as part of a mutual commitment to the elevation of the level of practice in our courts. These guidelines shall not be used as a basis for litigation or for Banc- tions or penalties. Nothing in these guidelines super- sedes or modifies the existing Local Rules of the Central District, nor do they alter existing standards of conduct Wherein lawyer negligence may be de- termined and/or examined: I. Guidelines A. Lawyers' Ditties to Their Clients We will practice our profession with a continuing awareness that our role is to advance the legitimate inter- ests of our clients. We will endeavor to achieve our clients' lawful objec- tives in legal transactions and in liti- gation as quickly and economically as possible. 2. We will be loyal and committed to our clients' lawful objectives, but we will not permit that loyalty and commitment to interfere with our duty to provide objective and inde- pendent advice. 3. We will advise our clients that ci- vility and courtesy are expected and are not a sign of weakness. 4. We will treat adverse parties and witnesses with fairness and due con- sideration. A client has no right to demand that we act in an abusive manner or indulge in any offensive conducL 5. We will advise our clients that we . will not pursue conduct, that is in- tended primarily to harass or drain the financial resources of the oppos- ing pay. 6. We will advise our clients that we reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect our cli- ents' lawful objectives. Clients.have no right to instruct us to refuse rea- sonable requests made by other counsel. 7. We will advise our clients regard- ing availability of mediation, arbi- tration, and other alternative meth- 0 0 ods of resolving and settling dis- putes. 8. We will advise our clients of the contents of this creed when under- taking representation. B. Lawyers' Duties to Other Counsel 1. Communications with Adversaries a. We will adhere to all express prom- ises and to agreements with other counsel, whether oral or in writing, and will adhere in good faith to all agreements implied by the circum- stances or local customs. b. When we reach an oral understand- ing on a proposed agreement or a stipulation and decide to commit it to writing, the drafter will endeavor in good faith to state the oral un- derstanding accurately and com- pletely. The drafter will provide the other counsel with the opportunity to review the writing: As drafts are exchanged between or among counsel, changes from prior drafts will be identified in the draft or oth- erwise explicitly brought to the at- tention of othercounsel. We will not include in a draft matters to which there has been no agreement with- out explicitly advising other coun- sel in writing of the addition. c. We will not write letters for the pur- pose of ascribing to opposing coun- sel a position he or she has not taken, or to create "a record" of events that have not occurred. Let- ters intended only to make a.record should be used sparingly and only when thought to be necessary un- der all of the circumstances. Unless specifically permitted or invited by the court, letters between counsel Should not be sent to judges.' 2. scheduling Issues a. We will not use any form of discov- ery or discovery scheduling as a means of harassment. b. We will consult other counsel re- garding scheduling matters in a good faith effort to avoid schedul- ing conflicts. c. We will endeavor to accommodate previously scheduled dates for hear- ings, depositions, meetings; confer- ences, vacations, seminars, or other functions that produce good faith calendar conflicts on the part of other counsel, where it is possible to do so without prejudicing the client's rights. If we have been given an accommodation because of a calendar conflict, we will notify those who have accommodated us as soon as the conflict has been re- moved. d. We will notify other counsel and, if appropriate, the court or other per- sons, at the earliest possible time when hearings, depositions, meet- ings, or conferences are to be can- celed or postponed. Early notice avoids unnecessary travel and ex- pense of counsel and may enable the court to use the previously reserved time for other matters. e. Unless time is of the essence, as a matter of courtesy we will grant first requests for reasonable extensions.. of time to respond to litigation deadlines. After a first extension; any additional requests for time grill be considered by balancing the need for expedition against the deference one should ordinarily give to an opponent's schedule of personal and professional engagements, the rea- sonableness of the length of exten- sion requested, the opponent's will• ingress to grant reciprocal exten- sions, the time actually needed for the task, and whether it is likely a court would grant the extension if asked to do so. 2 f. We will not request an extension of time solely for the purpose of un- justified delay or to obtain a tacti- cal advantage. g. We will not attach to extensions unfair and extraneous conditions. We may impose conditions for the purpose of preserving rights that an, extension might jeopardize, or for seeking reciprocal scheduling con- cessions. We will not, by granting extensions, seek to preclude an opponent's substantive rights, such as his or her right to move against a complaint. 3. Service of Papers a. We will not time the filing or ser- vice of motions or pleadings in any way that unfairly limits another party's opportunity to respond. b. We will not serve papers sufficiently close to a court appearance so as to inhibit the ability of opposing coun- sel to prepare for that appearance or, where permitted by law, to re- spond to the papers. c. We will not serve papers in order to. take advantage of an opponent's known absence from the office or at a time or in a manner designed to inconvenience an adversary, such as late on a Friday afternoon or the day preceding a secular. or religious holiday. d. When it is likely that service by mail, even when allowed, will preju dice the opposing parry, we will af- fect service personally or by fac- simile transmission. 4. Depositions a. We will take depositions only when actually needed to ascertain facts or information or to perpetuate testi- mony. We will not take depositions for the purpose of harassment or to increase litigation expense. b. We will not engage in any conduct during a deposition that would be inappropriate in the presence of a judge. c. During depositions we will ask only those questions we reasonably be. lieve are necessary for the prosecu- tion or defense of an action. We will not inquire into a deponent's per- sonal affairs or question a deponent's integrity where such in- quiry is irrelevant to the subject matter of the deposition. We will refrain from repetitive or argumen- tative questions or those asked solely for purposes of harassment. d. When defending a deposition, we will limit objections to those that are well founded and necessary to pro- tect our client's interests. We rec- ognize that most objections are pre- served and need be interposed only when the form of a question is de- fective or privileged information is sought. e. When a question is pending, we will not, through objections or other - wise,coach the deponent or suggest answers. We will not direct a deponent to refuse to answer questions unless they seek privileged information or are manifestly irrelevant or calcu- lated to harass. g. When we obtain documents pursu- ant to a deposition subpoena, we will make copies of the documents available to opposing counsel at his or her expense, even if the deposi- tion is canceled or adjourned. S. Document Demands a. We will carefully craft document production requests so they are lim- ited to those documents we reason- ably believe are necessary for the prosecution or defense of an action. We will not design production re- quests to harass or embarrass a party or witness or to impose an undue burden or expense in responding. b. We will respond to document re- quests in a timely and reasonable manner and not strain to interpret the request in an artificially restric- tive manner to avoid disclosure of relevant and non - privileged docu- ments. c.- We will withhold documents on the grounds of privilege only where it is appropriate to do so. d. We will not produce documents in a disorganized or unintelligible manner, or in a way designed to hide or obscure the existence of particu- lar documents. We will not delay document produc- tion to prevent opposing counsel from inspecting documents prior to scheduled depositions or for any other tactical reason. b. Interrogatories a. We will carefully craft interrogato- ries so that they are limited to those matters we reasonably believe are _ necessary for the prosecution or defense of an action, and we will not design them to harass or place an undue burden or expense on a ply. b. We will respond to interrogatories in a timely and reasonable manner and will not strain to interpret them in an artificially restrictive manner to avoid disclosure of relevant and non - privileged information. c. We will base our interrogatory ob- jections on a good faith belief in their merit and not for the purpose of withholding or delaying the dis- closure of relevant information. If an interrogatory is objectionable in part, we will answer the unobjec- tionable part. 7. Settlement and Alternative Dispute Resolution a. Except where there are strong and overriding issues of principle, we will raise and explore the issue of . settlement in every case as soon as enough is known about the case to make settlement discussion mean- ingful. b. We will not falsely hold out the pos- sibility of settlement as a means for adjourning discovery or delaying trial. c. In every case, we will consider whether the client's interest could be adequately served and the con- troversy more expeditiously and economically disposed of by arbi- tration, mediation, or other forms of alternative dispute resolution. g. Written Submissions to a Court, Including Briefs, Memoranda, Affidavits, Declarationsi and Proposed Orders. a. Before filing a motion with the court, we will engage in more than a mere pro forma discussion of its purpose in an effort to resolve the issue with opposing counsel. b. We will not force our adversary to make a motion and then not oppose it. c. In submitting briefs or memoranda of points and authorities to the court, we will not rely on facts that are not properly pan of the record. We may present historical, eco- nomic, or sociological data, if such data appears in or is derived from generally available sources. d. in civil actions, we will stipulate to relevant matters if they are undis- puted and if no good faith advocacy basis exists for not stipulating. e. Unless directly and necessarily in issue, we will not disparage the in- telligence, morals, integrity, or per- sonal behavior of our adversaries before the court, either in written submissions or oral presentations. I. We will not, absent good cause, at- tribute bad motives or improper conduct to other counsel or bring the profession into disrepute by un- founded accusations of impropriety. g. We will not move for court sanc- tions against opposing counsel with- out first conducting a reasonable investigation and unless fully justi- fied by the circumstances and nec- essary to protect our client's lawful interests. h. We will not cause any default or dismissal to be entered without first notifying opposing counsel, when we know his or her identity. When a draft order is to be prepared by counsel to reflect a court ruling, we will draft an order that accu- rately and completely reflects the court's ruling: We will promptly prepare and submit a proposed or- der to other counsel and attempt to reconcile any differences before the draft order is presented to the court. 9. Ex Parte Communications With the Court a. We will avoid er pane communi- cation on the substance of a pend- ing case with a judge (or his or her law clerk) before whom such case is pending. b. Even where applicable laws or rules permit an ex pane application or communication to the court, before making such an application or com- munication we will make diligent efforts to notify the opposing patty or his or her attorney. We will makr reasonable efforts to accommodate the schedule of such attorney, so that the opposing party may be repre- sented on the application. c. Where the rules permit an ex pane application or communication to the court in an emergency situation, we will make such an application or communication only where there is a bona fide emergency such that the lawyer's client will be seriously prejudiced by a failure to make the application or communication on regular notice. C. Lawyers' Duties to the Court 1. We will speak and write civilly and respectfully in all communications with the court 2. We will be punctual and prepared for all court appearances so that all hearings, conferences, and trials may commence on time; if delayed, . we will notify the court and coun- sel, if possible. 3. We will be considerate of the time constraints and pressures on the court and courtstaff inherent in their efforts to administer justice. 4. We will not engage in.any conduct that brings disorder or disruption to the courtroom. We will advise our clients and witnesses appearing in court of the proper conduct ex- pected and required there and, to the best of our ability, prevent our cli- ents and witnesses from creating disorder or disruption. 5. We will not write letters to the court in connection with a pending action, unless invited or permitted by the court. 4 6. Before dates for hearing or trials are set, or if that is not feasible, imme- diately after such date has been set, we will attempt to verify the avail- ability of necessary participants and witnesses so we can promptly no- tify the court of any likely problems. 7. We will act and speak civilly to court marshals, court clerks, court reporters, secretaries, and law clerks with an awareness that they, too, are an integral pan of the judicial sys- tem. D. Judges' Duties to Others We will be courteous, respectful, and civil to the attorneys, parties, and witnesses who appear before us. Furthermore, we will use our au- thority to ensure that all of the at- torneys, parties, and witnesses ap- pearing in our courtrooms conduct themselves in a civil manner. 2. We will do our best to ensure that court personnel act civilly toward attorneys, parties and witnesses. 3. We will not employ abusive, de- meaning, or humiliating language in opinions or in written or oral com- munications with attorneys, parties, or witnesses. 4. We will be punctual in convening all hearings, meetings, and confer- ences. 5. We will make reasonable efforts to decide promptly all matters pre- sented to us for decision. 6. While endeavoring to resolve dis- putes efficiently, we will be aware of the time constraints and pressures imposed on attorneys by the exigen- cies of litigation practice. 7. Above all, we will remember that the court is the servant of the people, and we will approach our duties in this fashion. *U.S. GPO: 1897-57&651 0 s UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE 3UDGE FOR DISCOVERY Pursuant to the Local Rules Governing Duties of Magistrate Judges, the following Magistrate Judge has been designated to hear discovery motions for this case at the discretion of the assigned District Judge: (MLGx) U Paul L. Abrams Lj Robert N. Block I I Rosalyn M. Chapman Lj Charles Eick [ I Paul Game Pq Marc Goldman L1 Stephen J. Hillman Lj Jeffrey W. Johnson [, Victor B. Kenton r Stephen G. Larson "Jennifer T. Lum Lj James W. McMahon L] Margaret A. Nagle Lj Arthur Nakazato Lj Fernando M. Olguin Lj Suzanne H. Segal T Carolyn Turchin I I Patrick J. Walsh L I A. J. Wistrich Lj Carla Woehrle Lj Ralph Zarefsky Upon the filing of a discovery motion, the motion will be presented to the United States District Judge for consideration and may thereafter be referred to the Magistrate Judge for hearing and determination. The Magistrate Judge's initials should be used on all documents filed with the Court so that the case number reads as follows: SACV04— 1204 DOC (MLGX) NOTICE TO COUNSEL A copy of this notice must be served With the summons and complaint on all defendants (if a removal action is riled, a copy of this notice must be served on all plaintfis). Subsequent documents must be filed at the following location: L) Western Division Southern Division (, Eastem Division 312 N. Spring St., Rm. G -8 411.West Fourth St., Rm. 1 -053 3470 Twelfth St., Rm. 134 Los Angeles, CA 90012 Santa Ana, CA 92701 -4516 Riverside, CA 92501 Failure to file at the proper location will result in your documents being returned to you. CV -18 (08102) NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY 0 0 CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless, CMC May 15, 2003 Bois & Mac Donald 2030 Main Street, Suite 520 Irvine, CA 92614 -8540 Principal: City of Newport Beach Claimant: Newport Condominium sociation Date of Loss: 5/7/03 . File No.: S 114625 GE To Whom It May Concern: Notice is hereby given that the claim you presented to the City of Newport Beach on behalf of the Newport Condominium Association, on May 9, 2003, was rejected on May 13, 2003. WARNING Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action in a municipal or superior court of the State of California on this claim See Government Code Section 945.6. This time limitation applies only to causes of action arising under California law for which a claim is mandated by the California Government Tort Claims Act, Government Code Sections 900 et. seq. Other causes of action, including those arising under federal law, may have a shorter time limitation for filing. You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately. Sincerely, A La onne . Harkless, CM City Clerk cc: Carl Warren & Co. Risk Manager City Manager File Copy 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us 0 TO: City of Newport Beach ATTN: LaVonne M. Harkless, CMC /AAE City Clerk RE: Claim 0 May 13, 2003 -w rAY 15 A 9 :25 -,fir tr ,;,YC'_EiA� Claimant Newport Condominium Assoc. D/Event �S�hfr3 5-- i —03 Ree'd Y /Office —5-9-93-5-1-03 00M Our File S 114625 GE We have reviewed the above captioned claim and request that you take the action indicated below: • CLAIM REJECTION: Send a standard rejection letter to the claimant. Please provide us with a copy of the notice sent, as requested above. If you have any questions please contact the undersigned. Very truly yours, CfARL WARREN & &�C�OMPANY t Gordon H. Eliason Cc: City of Newport Beach ATTN: Lauren F. Farley, Risk Manager CARL WARREN & COO CLAIMS MANAGEMENT•CLAIMS ADJUSTERS 750 The City Drive • Ste 400 • Orange, CA 92868 Mail: P.O. Box 25180 • Santa Ana, Ca 92799 -5180 Phone: (714) 740 -7999 • "(800) 572 -6900 • F= (714) 740.7992 E Mr. Gordon Eliason Carl Warren & Company 750 The City Drive, Suite 400 Orange, CA 92868 0 CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless, CMC May 9, 2003 Attached is a. Notice of Intent to Sue from Thomas Bois, on behalf of the Newport Condominium Association, regarding the claim received May 7, 2003. Sincerely, La onne M. arZCMC City Clerk Jh Attachment cc: City Attorney Risk Manager File Copy 3300 Newport Boulevard • Post Office. Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: (949) 644-3039, www.city.newport- beach.ca.us 1 2 3 Cl 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0 THOMAS J. BOIS, Il (Bar No. 110250) JAMES C. MACDONAI D (Bar No. 175760 BOIS & MACDONALD )``- v" 2030 Main Street, Suite 520 Irvine, CA 92614 Telephone: (949) 660 -00113 P;qY —9 r`, 9 :CS Facsimile: (949) 660 -0022 Attorneys for Plaintiff; 7 " uy �K ....'v Newport Condominium Association, a California Non- ` Profit Mutual Benefit Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NEWPORT CONDOMINIUM ASSOCIATION, a California Non -Profit Mutual Benefit Corporation, Plaintiff, vs. J CITY OF NEWPORT BEACH, a California J Charter City; SULLY - MILLER ) CONTRACTING COMPANY, a California ) Corporation, SULLY -ABLER ) CONTRACTING COMPANY, a Delaware ) Corporation, BEAZER WEST, INC., a ) Delaware Corporation, HANSON ) AGGREGATES WEST, INC., a Delaware ) Corporation, and DOES I —100, inclusive, Responsible Party Violator. } NOTICE OF INTENT TO SUE 42 U.S.C. §6972(a)(1)(B) and (b)(2)(A) 40 C.F.R. §254 42 U.S.C. §9601, et seq. Please take notice NEWPORT CONDOMINIUM ASSOCIATION, a Californiallon- Profit Mutual Benefit Corporation ("Complainant" or "Association') claims pursuant to this Notice of Intent to Sue: 2822 Notice of Intent to Sue • i 1 I, 2 ALLEGED VIOLATORS PROVIDED WITH NOTICE 3 Association is informed and believes and on that basis asserts that between 1953 and 1965 4 the CITY owned and operated a gravel and soils aggregate quarry. In the process ofconducting these 5 gravel and soils aggregate mining operations CITY accepted various types of refuse for backfill, 6 which among other things contains hazardous wastes and hazardous substances, inert surplus 7 building materials (including but not limited to gypsum board), and organic materials such as "green 8 waste ". Association is informed and believes the CITY delegated day to day responsibility for 9 managing these mining and backfilling operations to the Sully - Miller. Contracting Company, a 10 California corporation that also did business in California at that time as Sully Miller Company. 11 Sully - Miller Contracting Company was later merged into Beazer West, Inc., a Delaware Corporation 12 and/or Sully - Miller Contracting Company, a Delaware Corporation. Beazer West, Inc.'s name was 13 subsequently changed to Hanson Aggregates West, Inc. These entitities will hereinafter be referred 14 to collectively as ("Sully Miller"). 15 Thereafter in 1966, the CITY completed its backfilling of the quarry and landfill ( "City 16 Landfill'). At all material times the CITY owned and operated the City Landfill it did so without 17 regulatory oversight or permit. To date the CITY has yet to undertake proper measures to fully 18 decommission and close the City Landfill. In approximately 1971 CITY acting with awareness of 19 the hazardous conditions on the Site sold the entire Site including the City Landfill site to Leadership 20 Housing Systems, Inc. CIHSP'). Association is informed and believes that LHSI is a dissolved 21 and/or otherwise defunct legal entity. In approximately 1973 CITY acting with awareness of the 22 hazardous c onditions o n t he S ite authorized LHSI's construction of a residential development 23 adjacent to and in close physical proximity to the City Landfill. Shortly thereafter LHSI formed 24 Association and transferred ownership of all common areas including but not limited to the areas 25 comprising the City Landfill to Association. Association is a California Non Profit Mutual Benefit 26 Corporation charged with legal responsibility to maintain all common areas including but not limited 27 to the areas comprising the City Landfill. By reason of Association's legal duties it is prescribed the 28 responsibility of prosecuting the abatement of nuisances on Association property. The City Landfill -2- Notice of Intent to Sue ! 0 1 is now known to contain hazardous wastes, hazardous substances, methane gas and hydrogen sulfide 2 gas which constitute both a health hazard and nuisance. Notice is now provided to the following 3 persons and entities and/or their registered agents and representatives of record: 4 1. CITY OF NEWPORT BEACH, a California Charter City; 5 2. SULLY- MILLER CONTRACTING COMPANY a California Corporation, 6 previously doing business as Sully Miller Company, and doing business now in 7 California as Sully- Miller Contracting Company, a Delaware Corporation; 8 3. SCILLY- MILLER CONTRACTING COMPANY, a Delaware Corporation and the 9 successor in interest to Sully - Miller Contracting Company, a California Corporation; 10 4. BEAZER WEST, INC., a Delaware Corporation and the successor in interest by 11 merger to Sully - Miller Contracting Compan y, and, 12 5. HANSON AGGREGATES WEST, INC., a Delaware Corporation and the 13 successor in interest by name change to Beazer West, Inc. and Sully -Miller 14 Contracting Company. 15 Pursuant to the notification requirements set forth in §7002 of the Solid Waste Disposal Act, 16 as amended by the Resource Conservation and Recovery Act of 1976 C RCRA "), 42 U.S.C. 17 §6972(b)(2)(A), C omplainant hereby notifies all parties named above of its intention to file a 18 lawsuit, and/or amend its pending complaint, in court(s) of competent jurisdiction, against past and 19 present onsite and/or adjacent owners and/or operators which have contributed to the handling, 20 storage, treatment, transportation and/or disposal of liquid, solid, and/or hazardous wastes which 21 may and/or do present an imminent and substantial endangerment to health or the environment in 22 violation of the standards of RCRA, 42 U.S.C. §6972(a)(1)(B). 23 III. 24 SPECIFIC PERMIT, STANDARD, REGULATION, CONDITION, 25 REQUIREMENT, OR ORDER ALLEGEDLY VIOLATED 26 Complainant alleges that since approximately 1953 the alleged violators, and each of them, 27 stored liquid, solid and hazardous wastes, including but not limited to: Total Petroleum 28 Hydrocarbons C TPIT�; Hydrogen Sulfide; Perchloroethylene (" PCE' }; Toluene; M + P- xylene; -3- Notice of Intent to Sue I O- xylene; Dichlorodiflouromethane; Vinyl Chloride; Acetone; Methylene Chloride; Ethyl Benzene; 2 and other hazardous substances and wastes and other contaminants, all regulated under RCRA, in 3 places including but not limited to: earthen excavations; sumps; surface impoundments; surface 4 gutters; surface troughs; holding basins and other facility receptacles at, or adjacent to, the 5 approximately 41 -acre site located at west end of 19a' Street in Newport Beach, California bearing 6 APN Nos. 422 - 011 -04 & 05 (the "City Landfill "). Complainant further alleges the alleged violators 7 owned and/or operated a storage and/or disposal facility (as defined by RCRA) in that they stored 8 and/or disposed of liquid, solid and hazardous wastes and other contaminants in places including but 9 not limited to: earthen excavations; sumps; surface impoundments; surface gutters; surface troughs; 10 holding basins and other facility receptacles at, or adjacent to, the City Landfill. 11 In so doing, the alleged violators violated permits, standards, regulations, conditions, 12 requirements, prohibitions and/or orders pertaining to the storage and/or disposal of liquid, solid and 13 hazardous wastes, including, without limitation, regulations pertaining to "solid" waste disposal. In 14 turn, the activities of these entities have violated at least one or more of the following provisions of 15 RCRA, 42 U.S.C. § §6921, 6924, 6930, 6934, 6939a, 6944; and 40 C.F.R. §§ 264.90 - 261.101, 16 264.111-265.111,264.1 18-265.118, 264.142- 265.142, 264.180- 264.280, 264.228- 265280, 265.90- 17 265.94, 270.1(c) 265.112(a) (b) and (d); and, all other related statutes and regulations. 18 IV. 19 ACTIVITIES ALLEGED TO CONSTITUTE VIOLATIONS OF RCRA. 20 Association alleges that since at least approximately 1953 until 1966, the alleged violators 21 stored at one time or another liquid, solid and hazardous wastes, including but not limited to: Total 22 Petroleum Hydrocarbons ( "TPH ); Hydrogen Sulfide; Perchloroethylene C?CE "); Toluene; M +P- 23 . xylene; O- xylene; Dichlorodiflouromethane; Vinyl Chloride; Acetone; Methylene Chloride; Ethyl 24 Benzene, and other hazardous substances and wastes and other contaminants, all regulated under 25 RCPA, in places including but not limited to earthen excavations; sumps; surface impoundments; 26 surface gutters; surface troughs; holding basins and other facility receptacles at, or adjacent to, the 27 City Landfill. On occasion, the waste storage receptacles, devices, and other improvements were 28 known to be leaking, discharging and disposing of the liquid, solid and hazardous wastes and other -4- Notice of Intent to Sue 1 contaminants stored in them into the soil and groundwater at and beneath the City Landfill and 2 extending beneath surrounding areas. 3 Since the date the waste storage receptacles, devices and other improvements began to leak, 4 discharge and dispose of air and soil vapor phase, liquid, solid and hazardous wastes and other 5 contaminants stored in them, said wastes have been disposed, discharged, released, spilled, leaked, 6 leached, off gassed and/or migrated into the air, soil and groundwater at above, beneath and adjacent 7 to the City Landfill. Thereafter, continuing to the present, said air and soil vapor phase, liquid, solid 8 and hazardous wastes have leached, migrated and caused damage, including the contamination ofthe 9 air, soil and groundwater at, beneath and adjacent to the City Landfill and present apublic health and 10 safety hazard, and nuisance. 11 Complainant alleges that the alleged violators have handled, stored, treated, transported 12 and/or disposed of solid and hazardous wastes at, and adjacent to, the City Landfill in a manner 13 which caused those wastes to contaminate the air, soil and groundwater at, beneath and adjacent to 14 the City Landfill and thus cause an imminent and substantial endangerment to health and/or the 15 environment. 16 V. 17 PERSON OR PERSONS RESPONSIBLE 18 FOR THE ALLEGED VIOLATIONS OF RCRA 19 Complainant alleges that the parties responsible for the RCRA violations alleged hereinabove 20 include, but are not limited to, each of the persons named above on page 1. 21 V1, 22 DATE OR DATES OF THE ALLEGED VIOLATIONS OF RCRA 23 Complainant alleges that the RCRA and other violations on, and adjacent to, the CITY 24 Landfill alleged hereinabove began sometime after 1952 and continued until the early to mid 1966. 25 The following entities (or their predecessors in interest and/or affiliates) were on the City Landfill as 26 owners and/or operators during the following approximate violation periods: 27 CITY OF NEWPORT BEACH 1953 -1966 28 -5- Notice of Intent to Sue 0 0 1 SULLY - MILLER CONTRACTING COMPANY, 2 a California Corporation, previously doing business as 3 Sully Miller Company, and doing business now in 4 California as Sully - Miller Contracting Company, 5 a Delaware Corporation; 1953 -1966 6 SULLY- MILLER CONTRACTING COMPANY, 7 a Delaware Corporation and the successor in interest 8 to Sully - Miller Contracting Company, 9 a California Corporation; 1953 -1966 10 BEAZER WEST, INC., 11 a Delaware Corporation and the successor in interest 12 by merger to Sully - Miller Contracting Company, 13 a California Corporation; 1953 -1966 14 HANSON AGGREGATES WEST, INC., 15 a Delaware Corporation and the successor in interest 16 by name change to Beazer West, Inc. 17 and Sully - Miller Contracting Company, 1953 -1966 18 V111, 19 NAME, ADDRESSES AND TELEPHONE NUMBER 20 OF PERSON GIVING NOTICE 21 This notice is sent on behalf of the Complainant listed on page 1. All communications are to 222 be directed to: 23 Thomas J. Bois U, Esq. 24 James C. Macdonald, Esq. 25 BOIS & MACDONALD 26 2030 Main Street, Suite 520 27 Irvine, California 92614 -8540 28 Telephone: 949/660 -0011; Facsimile: 9491660 -0022 -6- Notice of Intent to Sue 1 VIII. 2 CLAIMS RESOLUTION 3 ANYREGULATORYAGENCYSEEKING TO COMPEL THEALLEGED VIOLATORS' 4 COMPLL4NCE ARE DIRECTED TO DO SO AND PROVIDE NOTIFICATION TO 5 COMPLAINANT WITHIN NINETY (90) DAYS. 6 ANY PERSON OR ENTITY ALLEGED TO BE A VIOLATOR SEEKING TO 7 COMPROMISE THIS CLAIM BY WRITTENAGREEMENTAND AVOID FURTHER SUIT 8 AND THE INCURRENCE OFATTORNEYS' FEESAND EXPERT FEES ISDIRECTED TO 9 SO AND PROVIDE NOTIFICATION TO COMPLAINANT WITHIN NINETY (90) DAYS 10 IFNOSUCHNOTIFICATION (S)ISRECEIVED COMPLAINANT WILLINI77ATEACIVIL 11 ACTION UNDER 42 U.S.C. $9601 ET SEQ. AGAINST SAID ENTITIES AND /OR 12 INDIVIDUALS. 13 14 DATED: May 6, 2003 BOIS & MACDON 15 By: 16 Thomas J. Bois, II James C. Macdonald, 17 Attorneys for Plaintiff NEWPORT CONDOMINNM ASSOCIATION 18 19 20 21 22 23 24 25 26 27 28 -7- Notice of Intent to Sue 11 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 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Bois & Macdonald, 2030 Main Street, Suite 520, Irvine, California 92614 On May 6, 2003, I served the within document: NOTICE OF INTENT TO SUE ❑ by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. ❑X by placing the document(s) listed above in a sealed envelopes, Certified Mail, Return Receipt Requested with postage thereon fullyprepaid, in the United States mail at Irvine, California addressed as set forth below. ❑ by causing personal delivery byProCourier Services, hic. of the document(s) listed above to the person(s) at the address(es) set forth below. See Attached Service List I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 91*WaPF Executed this 6a' day of May, 2003, at Irvine, California: t�uirurw /ti�GC�.� Corinne Gillette 10 11 13 14 15' 16 17 18 19 20 21 23 24 251 26 27 28 SERVICE LIST E Newport Condominium Association a City of Newport Beach, et a& United States District Court Administrator United States Attorney General John Ashcroft U.S. Environmental Protection Agency DEPARTMENT OF JUSTICE 1200 Pennsylvania Ave., N.W. 10th & Constitution, N.W. Washington, D.C. 20460 Washington, D.C. 20530 Regional Administrator U.S. Environmental Protection Agency - Region IX 75 Hawthorne Street San Francisco, CA 94105 -3901 Director- California Department of Toxic Substances Control 400 "P" Street, 4th Floor P.O. Box 806 Sacramento, CA 95812 -0806 CT Corporation System Agent of Service for Sully -Miller Contracting Company, a California Corporation 818 West Seventh Street Los Angeles, CA. 90017 Bruce Rieser, President Sully - Miller Contracting Company, a Delaware Corporation 1100 E. Orangethorpe Avenue, Suite 200 Anaheim, CA 92801 Hanson Aggregates West, Inc. a Delaware Corporation 1333 Campus Parkway Neptune, New Jersey 07753 City Clerk City of Newport Beach 3300 Newport Avenue Newport Beach, CA 92663 soocv49sa5 Kamron Saremi, P.E. Regional Water Quality Control Board Santa Ana Region 3737 Main Street, Suite 500 Riverside, CA 92501 -3339 The Corporation Company Agent of Service for Beazer West, Inc. a Delaware Corporation 30600 Telegraph Road Bingham Farms, Michigan 48025 John H. Wimberly, President Sully -Miller Contracting Company, a California Corporation 1333 North California Boulevard, Suite 445 Walnut Creek, CA 94596 CSC — Lawyers Incorporating Service Agent of Service for Sully - Miller Contracting Company, a Delaware Corporation 2730 Gateway Oaks, Drive, Suite 100 Sacramento, CA 95833 Frederick A. Nelson, President Hanson Aggregates West, Inc. a Delaware Corporation 2680 Bishop Drive San Ramon, CA 945834280 CT Corporation System Agent of Service for Hanson Aggregates West, Inc. a Delaware Corporation 818 West Seventh Street Los Angeles, CA 90017 Mr. Gordon Eliason Carl Warren & Company. 750 The City Drive, Suite 400 Orange, CA 92868 CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless, CMC May 7, 2003 Attached is a claim for damage from Thomas Bois on behalf of the Newport Condominium Association for damages sustained on June 20, 2002, on property previously owned by the City. The claimant alleges that the City is responsible for remedying the unsafe conditions asserted in the Orange County Health Care Agency's Corrective Action of Order with regard to a landfill. Sincerely, LaVonne M. Harkless, CMC City Clerk :lh Attachment cc: City Attorney Risk Manager General Services File Copy 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.caus . 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 THOMAS J. BOIS, H [Bar No: 110250] JAMES C. MACDONALD [Bar No: 175760] BOIS & MACDONALD 2030 Main Street, Suite 520 Irvine, California 92614 Telephone: (949) 660 -0011 Facsimile: (949) 660 -0022 Attorneys for Claimant Newport Condominium Association In the Matter of the Claim of NEWPORT CONDOMINIUM ASSOCIATION Against THE CITY OF NEWPORT BEACH 0 '03 UPY -7 f1 "; 36 CASE NO: CLAIM FOR DAMAGES (Government Code § 910) Comes now NEWPORT CONDOMINIUM ASSOCIATION, a Califomiallon -Profit Mutual Benefit Corporation (hereinafter "Claimant "), by and through their attorneys, Bois & Macdonald, and pursuant to Government Code § 910 presents the following claim to the CITY OF NEWPORT BEACH ( "City or "NEWPORT BEACH "), a government entity duly organized and existing under the laws of the State of California. 1. The address of Claimant. is c/o Villageway Management, 22 Mauchly Ave, Irvine, California 92618. The telephone number is (949) 450 -1515. 2. Claimant requests that all notices regarding this claim be sent to their attorneys, Bois & Macdonald, 2030 Main Street, Suite 520, Irvine, CA 92614, to the attention of Thomas J. Bois, II Esq., Telephone: (949) 660 -0011; Facsimile: (949) 660 -0022. 3. Claimant presently intends to file a Complaint against City to make claims for: (A) Cost Recovery pursuant to the Comprehensive Environmental Response, Compensation and LiabilityAct of 1980 (42 U.S.C. §9601) et seq.; 12789-1 Claim for Damages 1 (B) Injunctive Relief pursuant to the Resource Conservation and Recovery 2 Act of 1976 (42 U.S.C. §6901) et seq.; 3 (C) Continuing Nuisance; 4 (D) Continuing Trespass; 5 (E) Indemnity; 6 (F) Contribution; and, 7 (G) Declaratory Relief. 8 4. The jurisdictional allegations and the factual basis for the claim made by 9 Claimant is as follows: 10 (A) Claimant is a residential homeowners' association which maintains 11 and operates a condominium common interest development and real property consisting of 280 12 condominium units and common areas, pursuant to Covenants, Conditions and Restrictions and the 13 California Civil Code (Section 1351 et seq.). 14 (B) Claimant's real property was formerly owned and operated by CITY 15 during the period 1953 -1966. 16 . (C) At the time CITY owned the real property it designed, constructed and 17 operated a sand, gravel and aggregate quarry. Thereafter City converted the real property into a 18 landfill ("City Landfill" or "Landfill ") which accepted hazardous substances, hazardous wastes, inert 19 refuse materials and "green waste ". 20 (D) CITY's former Landfill has at all material times contained unsafe 21 levels of hazardous substances, hazardous wastes and methane gas which are a public health and 22 safety hazard to Claimant's members and the general public. The City Landfill's unsafe levels of 23 hazardous substances, hazardous wastes and methane gas constitute a violation of federal and state 24 statutory and regulatory law. The City Landfill's unsafe levels of hazardous substances, hazardous 25 wastes and methane gas also constitute a continuing nuisance and trespass. 26 (E) On June 20, 2002, the Orange County Health Care Agency 27 ( 'OCHCA' } issued a Corrective Action Order ( "CAO ") to Claimant with regard to the City Landfill. 28 The OCHCA asserted that the City Landfill's unsafe levels of hazardous substances, hazardous -2- Claim for Damages 1 wastes and methane gas constitute a nuisance and public health hazard requiring remedial action 2 which will require significant effort and the incurrence of significant cost and expense. Claimant 3 contends the CAO is the operative event giving rise to its claim against the CITY and this notice. 4 (F) As the owner and operator of the City Landfill, CITY is responsible for 5 remedying all hazardous air, soil and groundwater conditions it created and incurring all corrective 6 action costs. 7 (G) Claimant asserts all Federal Statutory and Regulatory claims are 8 exempt from compliance with California Government Code Section 910 et seq. pursuant to Cal. Gov. 9 Code Section 905 and the Supremacy Clause of the U.S. Constitution (Art. VI, cl. 2). 10 5. Claimant is seeking: 11 (A) Recovery for past remedial and response costs pursuant to 42 U.S.C. 12 §9601 et seq.; 13 (B) Injunctive reli ef c ompelling C TTY t o p erform a ll future r emedial 14 actions for the City Landfill pursuant to 42 U.S.C. §6901 et seq.; 15 (C) Recovery of attorneys' fees, expert fees, and costs pursuant to 42 16 U.S.C. §6972 et seq.; 17 (D) Recovery for past, present and future remedial and/or response costs, 18 attorneys' fees, expert fees and court costs pursuant to state statute and common law; and, 19 (E) Claimant's contends the claim presented is not a limited civil case. 20 6. If, after the expiration of forty -five (45) days, CITY denies this 21 claim pursuant to Government Code Section 910, Claimant will serve its Complaint on CITY. 22 7. Claimant hereby submits this claim to CITY for CITY's mediation and/or 23 resolution of the claims made. 24 8. Claimant is presently unaware of the names of all of the public employees 25 with personal knowledge of these claims, but believes that these employees include employees of 26 CITY involved in the City's Landfill. 27 28 -3- Claim for Damages 0 i 1 I, Thomas J. Bois, II, the undersigned, am presenting this claim on behalf of 2 Association as its attorney. 3 Dated: May 6, 2003 BOIS & MACDONALD 4 5 By: 6 Thomas J. Bois, II 7 Attorneys for Newport Condominium Association. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Claim for Damages 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 0 0 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is ProCourier, 17885 Sky Park Circle, Suite "J", Irvine, California 92614 On May 7, 2003, I served the within document: CLAIM FOR DAMAGES X by personally delivering the document listed above to the person at the address set forth below. City Clerk City of Newport Beach 3300 Newport Avenue Newport Beach, CA 92663 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. SDOC2/49525 Executed this 7h day of May, 2003, at Irvine, California. `.�i ►�, ►. III' X11 a \. Donald ProCourier