BKK Working Group (2006) •
AMENDMENT TO TOLLING AGREEMENT
The undersigned are parties to that certain TOLLING AGREEMENT made and
entered as of MARCH 1, 2009 (the "Agreement"). The parties wish to amend and
modify the terms of the Agreement for the purpose of extending the term thereof for two
(2) months as follows:
For good and valuable consideration, paragraph 1 of the Agreement is replaced
with the following:
"1. In consideration for the promises contained herein, the parties hereto agree
that the period of time between March 1, 2009 and August 1, 2009 shall not be
included in determining or calculating the applicability of any statute of limitation,
laches, or any other defense based on the lapse or passage of time in any action
• or proceeding brought by, filed or asserted by the CCCA, the LTFOC or
CONTRACT CITIES, or any of them, based upon any claims arising out of or
related to the AGREEMENTS, INCIDENTS, THE CLAIM, or the DISPUTES.
Nothing in this TOLLING AGREEMENT shall operate to prevent, hinder, or
otherwise bar the COUNTY from asserting that claims relating to the INCIDENTS
filed by one or more of the parties were untimely, and/or that late claim relief is
required and/or was not obtained. Without acknowledging that a claim or further
claim is required, nothing herein shall prevent or restrict the right of the CCCA,
LTFOC or the CONTRACT CITIES, from filing any claim with the COUNTY."
As modified by this amendment, the Agreement remains in full force and effect and
remains fully binding upon the parties.
IT IS SO AGREED.
COUNTY OF LOS ANGELES
Dated: June , 2009 By:
Roger H. Granbo
Its: Assistant County Counsel
CITY OF RANCHO PALOS VERDES
' Dated: June=Q 2009 By:Y
Larry lark
Its: Mayor
LIABILITY TRUST FUND OVERSIGHT
COMMITTEE
Dated June , 2009 By:
Its:
{
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TOLLING AGREEMENT
This Tolling Agreement ("Agreement") is made and entered into by and between the
BKK Working Group and City of Rancho Palos Verdes. The BKK Working Group is an
unincorporated association of twenty-seven entities, identified in Exhibit A, who in March 2006
entered into a Consent Decree with the California Department of Toxic Substances Control
("DTSC") related to the BKK Corporation Landfill Facility ("DTSC Consent Decree"), located
in West Covina, California("Facility"). Hereinafter, the BKK Working Group, and City of
Rancho Palos Verdes are singularly referred to as a "Party" and collectively referred to as the
"Parties."
Recitals
A. The BKK Working Group has notified City of Rancho Palos Verdes that it may
have legal liability based upon the disposal of waste material at the Facilityunder the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601,
et seq. City of Rancho Palos Verdes denies such liability for purposes of this Agreement.
B. The Parties desire to toll any applicable statute of limitationsovernin claims
thatg g
the Parties could assert against each other relating to the Facility in the manner set forth
below.
Terms and Conditions
1. The BKK Working Group and each of its individual members listed on Exhibit A,
and City of Rancho Palos Verdes agree that all statutes of limitations and any other statute, law,
rule or principle of equity of similar effect, including provisions under the California
Government Claims At, California Gov't Code §§ 900-960.8 (collectively, "Statute of
Limitations") applicable to any rights, claims, causes of action, counterclaims, crossclaims
defenses, and claims act presentation regarding, based upon, or arising out of disposal of waste
material at the Facility, or the ownership or operation of the Facility which the BKK Working
Group could assert against City of Rancho Palos Verdes, or which Cityof Rancho Palos Verdes
could assert against the BKK Working Group as of the Effective Date ("Claims") shall be tolled
for the period between the Effective Date and the Termination Date, and this tollingperiod shall
be excluded from all computations of any applicable period of limitations.
2. The Parties agree that they shall waive and shall not plead, assert, or otherwise
raise any Statute of Limitations or any other time-related defense otherwise applicable to the
pp
Claims, to the extent such limitations period or other time-related defense is tolled by this
Agreement, as a bar to or other limitation on any of the Claims.
3. The BKK Working Group and City of Rancho Palos Verdes agree not to initiate
litigationg
concerning the investigation,remediation, or the recovery of costs relating to the
Facility against the other Party between the Effective Date and the Termination Date. However,
this provision shall not preclude any Party from seeking informationp ursuant to the California
Public Records Act("PRA"), California Gov't Code §§ 6250-6276.48 from another Party or a
third Party relating to waste disposed at or liability associated with the Facility or from enforcing
rights to such information under the PRA.
A/72770204.4/3001863-0000308648
A P.
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4. Each of the undersigned certifies that he or she is fully authorized to enter into the
terms and conditions of this Agreement and to legally bind such party to all terms and conditions
of this document. This Agreement shall be binding upon the Parties, their successors and any
additional entities who may join the BKK Working Group after execution of this Agreement.
5. By entering into this Agreement, the Parties do not admit any fact nor assume any
liability of any kind. Moreover, this Agreement may not be offered as evidence of an admission
of such responsibility or liability in any court, administrative, alternative dispute resolution
proceeding or legal proceeding, except as to enforce the standstill agreement and as to the issue
of the tolling of any Statute of Limitations or any other time-related defense.
6. The BKK Working Group and City of Rancho Palos Verdes agree that this
Agreement shall not apply to any third party and shall not revive any rights, claims, causes of
actions, counterclaims, crossclaims or defenses that are already barred by an applicable provision
of law as of the Effective Date. Notwithstanding the above, this Agreement shall inure to the
benefit of and be binding upon, any and all legal successors to or assigns of the Parties. Nothing
expressed or implied in this Agreement is intended to confer on any person other than the Parties
and their legal successors or assigns any rights or obligations under this Agreement.
7. This Agreement may be signed in counterparts by one or more of the Parties, and
those counterparts when taken together shall have the same force and effect as if a single,
original document had been signed by all the Parties.
8. The Termination Date of this Agreement shall be the earlier of: (a)three (3)years
from the Effective Date or, (b) fifteen (15) days after any Party, in its sole discretion, gives
written notification of termination to the other Party. Notwithstanding the termination of this
Agreement, the Statute of Limitations shall remain tolled for an additional sixty(60) days
following the Termination Date. This provision shall survive the termination of the Agreement.
9. The Parties shall preserve and maintain, during the term of the tolling period, and
for a minimum of 90 days after termination of the tolling period, at least one legible copy of all
documents and other materials subject to discovery under the Federal Rules of Civil Procedure
and relating to waste disposal at the Facility, regardless of any document retention policy to the
contrary.
10. This Agreement contains the entire agreement between the Parties, and no
statement,promise, or inducement made by any Party to this Agreement that is not set forth in
this Agreement shall be valid or binding, nor shall it be used in construing the terms of the
Agreement as set forth herein.
11. Any modifications to this Agreement must be in writing and signed by all Parties.
The Parties acknowledge that this Agreement may be extended for such period of time as the
.
Parties agree in writing.
12. The Effective Date of this Agreement shall be the date upon which City of
Rancho Palos Verdes signs the Agreement.
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IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Group
By: Date:
Name: James J. Dragna, Esq. Title: Attorney for the BKK Working Group
City of Rancho Palos Verdes
By: Date:
Print Name: Title:
CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name:
Title:
Company:
Address:
Phone:
Email:
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A/72770204.4/3001863-0000308648
Exhibit A
American Honda Motor Co., Inc.
Anadarko Petroleum Corporation
Atlantic Richfield Company
Bayer CropScience Inc.
Chemical Waste Management, Inc.
Chevron Environmental Management Company
City of Los Angeles, Department of Water and Power
ConocoPhillips Company
Ducommun Aerostructures, Inc.
Exxon Mobil Corporation
General Motors Corporation
Honeywell International Inc.
Huntington Beach Company
McFarland Energy, Inc.
National Steel and Shipbuilding Company
Northrop Grumman Corporation
Quemetco, Inc.
Rohr, Inc.
Shell Oil Company
Southern California Edison Company
Thums Long Beach Company
Union Carbide Corporation
Union Oil Company of California
Washington Mutual Bank
Waste Management Collection and Recycling, Inc.
Western Waste Industries, Inc.
Xerox Corporation