BKK Working Group - FY2009-002-03 s 1
THIRD TOLLING AGREEMENT
This Third Tolling Agreement("Agreement")is made and entered into by and between
the BKK Working Group and the City of Rancho Palos Verdes. The BKK Working Group is an
unincorporated association of thirty-three entities, identified in Exhibit A,who in August 2010
entered into a Second Consent Decree with the California Department of Toxic Substances
Control ("DTSC")related to the BKK Corporation Landfill Facility("DISC Consent Decree"),
located in West Covina, California("Facility"). Hereinafter,the BKK Working Group and the •
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 the City of Rancho Palos Verdes that it
may have legal liability based upon the disposal of waste material at the Facility under the
Comprehensive Environmental Response,Compensation,and Liability Act,42 U.S.C. §§9601,
et seq. The City of Rancho Palos Verdes denies such liability for purposes of this Agreement.
B. The Parties entered into a tolling agreement("2009 Tolling Agreement")effective
in 2009 that tolled any applicable statute of limitations governing claims that the BKK Working
Group could assert against the City of Rancho Palos Verdes or vice versa relating to the Facility
until 2012.
C. The Parties entered into a Second Tolling Agreement effective in 2012 that tolled
any applicable statute of limitations governing claims that the-BKK Working Group could assert
against the City of Rancho Palos Verdes or vice versa relating to the Facility until 2015.
D. The Parties desire to continue to toll any applicable statute of limitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below. ng•
This Agreement is a successor agreement to the 2009 Tolling Agreement and the
Second Tolling Agreement.
Terms and Conditions
1. The BKK Working Group,each of its individual members listed on Exhibit A,
and the 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 the City of Rancho Palos Verdes,or which the City of 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 tolling
period 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
A/76273682.1
110
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 the City of Rancho Palos Verdes agree not to
initiate litigation 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 information pursuant 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. •
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 the 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
action,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)January 2,
2018,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.
2
A/76273682.1
, ,
0 III
. .
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 January 2,2015.
IN WITNESS THEREOF,the Parties have executed this Agreement on the dates set forth
below.
BKK Wor ' g Grail.
X111Ili �"
By: Date: 7i 2�(?��
Name: J•E 6 ,•gna,Esq. Title:Attorney for the BKK Working Group
City of Rancho Palos Ve,:�� .--
— /i,..
••
By: ':�
Date: 14//y.
Pri ame: 1M- i81if Title: a +o r
CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name:
Title:
Company:
Address:
Phone:
Email:
3
M627S682.1 •
• S
•
1 1. Any modifications to this Agreement must be in writing and signed by all Parties.
'rhe 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 January 2,2015.
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Wor ing Group
By: Date: VO
♦.
Name: J.mes J. P ragna,Esq. Title: Attorney for the BK:K Working Group
City of Rancho Palos Verdes
By: Date:
• Print Name: _ :_.__.. Title: _
CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name: Lisa Bond
Title: Attorneys for City of Rancho Palos Verdes
Company: Richards,Watson&Gershon
Address: 355 South Grand Avenue
40th Floor
Los Angeles,CA 90071-3101
•
Phone: (213)626-8484
Email: lbondrwglaw.com _
3 •
•
A/76273682.I
f «.
•
Attachment
American Honda Motor Co., Inc.
Anadarko Petroleum Corporation
Atlantic Richfield Company
Bayer CropScience Inc.
The Boeing Company
Chemical Waste Management, Inc.
Chevron Environmental Management Company
City of Los Angeles, Department of Water and Power
ConocoPhillips Company .
The Dow Chemical Company
Ducommun Aerostructures, Inc.
Exxon Mobil Corporation
Gemini Industries, Inc.
General Latex and Chemical Corporation
Honeywell International Inc.
Huntington Beach Company
Lockheed Martin Corporation
Morton international, Inc.
National Steel and Shipbuilding Company
•
Northrup Grumman Corporation
Quemetco, Inc.
Raytheon Company
Rockwell Automation, Inc.
Rohr, Inc.
Rohm and Haas Company
Shell Oil Company
Southern California Edison Company
Thums Long Beach Company
Union Carbide Corporation •
Union Oil Company of California
Waste Management Collection and Recycling, Inc.
Western Waste Industries, Inc.
Xerox Corporation
A/76273682,1
1111 •
SECOND TOLLING AGREEMENT
This Second Tolling Agreement ("Agreement") is made and entered into by and between
the BKK Working Group and the City of Rancho Palos Verdes. The BKK Working Group is an
unincorporated association of thirty-three entities, identified in Exhibit A, who in August 2010
entered into a Second 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 the
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 the City of Rancho Palos Verdes that it
may have legal liability based upon the disposal of waste material at the Facility under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601,
et seq. The City of Rancho Palos Verdes denies such liability for purposes of this Agreement.
B. The Parties entered into a tolling agreement("2009 Tolling Agreement") effective
in 2009 that tolled any applicable statute of limitations governing claims that the BKK Working
Group could assert against the City of Rancho Palos Verdes or vice versa relating to the Facility
until February 2012.
C. The Parties desire to continue to toll any applicable statute of limitations
governing claims that the Parties could assert against each other relating to the Facility in the
manner set forth below.
D. This Agreement is a successor agreement to the 2009 Tolling Agreement.
Terms and Conditions
1. The BKK Working Group, each of its individual members listed on Exhibit A,
and the 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 Act, 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 the City of Rancho Palos Verdes, or which the City of 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 tolling
period 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
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 the City of Rancho Palos Verdes agree not to
initiate litigation concerning the investigation, remediation. or the recovery of costs relating to
A/74 602 800.I
•
•
the Facility against the other Party between the Effective Date and the Termination Date.
However, this provision shall not preclude any Party from seeking information pursuant 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.
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 the 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
action, 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.
1 1. 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.
A/7460280o I
•
12. The Effective Date of this Agreement shall be February 1, 2012.
TN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Worki : Gro
� N
By.• Date.: 2-102 -
Name: Jam .. I ragna, Esq. Title: Attorney for the BKK Working Group
City of Rancho Palos Verde
By: ',, Date: January 31, 2012
Print Name: Lisa Bond Title: Attorneys for City of Rancho Palos Verdes
CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name: Lisa Bond
Title: Attorneys for City of Rancho Palos Verdes
Company: Richards, Watson& Gershon
Address: 355 South Grand Avenue
40th Floor
Los Angeles, CA 90071-3101
Phone: (213) 626-8484
lbond@rwglaw.com
,rwglaw.com
Email:
3
1/74602800 1
•
411) •
r,
EXHIBIT A
• American Honda Motor Co., Inc.
• Anadarko E&P Company LP
• Atlantic Richfield Company
• Bayer Cropscience Inc.
• The Boeing Company
• Chemical Waste Management, Inc.
• Chevron Environmental Management Company
• City of Los Angeles, Acting By and Through the Los Angeles Department of Water and
Power
• ConocoPhillips company
• The Dow Chemical Company
• Ducommun Aerostructures Inc.
• Exxon Mobil Corporation
• Gemini Industries, Inc.
• General Latex and Chemical Corporation
• Honeywell International Inc.
• Huntington Beach Company
• Lockheed Martin Corporation
• McFarland Energy, Inc.
• Morton International, Inc.
• National Steel and Shipbuilding Company
• Northrop Grumman Corporation
• Quemetco, Inc.
• Raytheon Company
• Rohr, Inc.
• Rohm and Haas Company
• Shell Oil Company
• Southern California Edison Company
• THUMS Long Beach Company
• Union Carbide Corporation
• Union Oil Company of California
• Waste Management Collection and Recycling, Inc.
• Western Waste Industries
• Xerox Corporation
A'74541912 1
•
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 Facility under 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 limitations governing claims
that 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 City of 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
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
litigation 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 information pursuant 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 enforcingg
information to such under the PRA.
A/72770204.4/3001863-0000308648
•
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.
2
A/72770204.4/3001863-0000308648
r.k
11
•
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: V3CO4_ Date: February 17, 2009
Print Name: Larry Clark Title: Mayor
CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name: Carolyn Lehr
Title: City Manager
Company: City of Rancho Palos Verdes
Address: 30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
Phone: (310) 377-0360
Email: clehr@rpv.com
3
A/72770204.4/3001863-0000308648
IN WITNESS THEREOF, the Parties have executed this Agreement on the dates set forth
below.
BKK Working Grow
By:
Name: James . Dragna, Esq.
City of R d
By' -P---
--
Print Name: L' $
Date: 3WQ- l
Title: Attorney for the BKK Working Group
Date: 2/19/09
Title: Rancho Palos Verdes
CONTACT INFORMATION FOR CITY OF RANCHO PALOS VERDES
Name: Lisa Bond
Title: Attornas for C
ity of RaichQ Palos Yerdes
Company: Richard slWatsonIGer shon
Address: 355 South Grand Avenue
40th Floor
;_,os Angeles, CA 90071
Phone: (213) 626-8484
A/72770204.4f3001963-0000308648
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