State of California Department of Toxic Substances Control v. Westside Delivery LLC et al

Filing 52

CONSENT DECREE BETWEEN DTSC AND WESTSIDE DELIVERY, LLC by Judge Stephen V. Wilson Related to: First NOTICE OF MOTION AND MOTION to Approve Consent Judgment 48 . (See document for details) (mrgo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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STATE OF CALIFORNIA
DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,

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v.

Case No. 2:15-cv-07786-SVW (JPRx)
CONSENT DECREE BETWEEN
Plaintiff, DTSC AND WESTSIDE
DELIVERY, LLC

WESTSIDE DELIVERY, LLC, and
DOES 1 through 10, inclusive,
Defendants.

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I.

INTRODUCTION
1.

On October 5, 2015, Plaintiff, the State of California Department of

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Toxic Substances Control (“DTSC”), filed the complaint (“Complaint”) in this

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matter pursuant to the Comprehensive Environmental Response, Compensation,

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and Liability Act, 42 U.S.C. §§ 9601-9675 (“CERCLA”) and the California

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Hazardous Substances Account Act (“HSAA”), California Health and Safety Code

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§ 25300 et seq. against Westside Delivery, LLC (“Westside”). In the Complaint,

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DTSC seeks 1) to recover under CERCLA section 107(a), 42 U.S.C. § 9607(a),

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[Proposed] Consent Decree
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costs it incurred responding to releases and/or threatened releases of hazardous

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substances at or from the former Davis Chemical Company located at 1550 North

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Bonnie Beach Place, Los Angeles, California, identified by Los Angeles County

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Assessor’s Parcel Number 5224-026-005 (the “Site”); 2) declaratory relief under

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CERCLA section 113(g)(2), 42 U.S.C. § 9613(g)(2) that Westside is jointly and

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severally liable for any future response costs to be incurred by DTSC to address

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releases and/or threatened releases of hazardous substances at or from the Site; and

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3) injunctive relief pursuant to Health and Safety Code section 25358.5 compelling

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Westside to conduct any necessary future response actions at the Site.

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2.

In the Complaint, DTSC alleges, in relevant part, the following:

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a.

The Site is located in the City of Los Angeles.

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b.

From approximately 1953 to 1990, Davis Chemical Company

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operated a solvent recycling facility at the Site, which recycled acetone and,

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to a lesser extent, chlorinated solvents.

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c.

In 1997, Davis Chemical Company conducted a site

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investigation that identified the presence of 1,1,2-trichloroethane (“TCE”),

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perchloroethene (“PCE”), and 1,1,2,2-tetrachloroethane in the soil at the Site.

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d.

On December 18, 2002, DTSC issued an Imminent and

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Substantial Endangerment Determination and Remedial Action Order (the

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“2002 Consent Order”), which included findings that hazardous substances

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had been released and were present in the soil at the Site in sufficient

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concentrations to pose a substantial danger to public health and the

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environment. It further found that there was a potential threat of groundwater

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contamination from those releases. The 2002 Consent Order directed the

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respondents thereto to prepare a Remedial Investigation and Feasibility Study

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and a Remedial Action Plan (the “RAP”) for the Site.

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e.

In 2009, DTSC determined that the work required by the 2002

Consent Order was complete.

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f.

In 2009, DTSC issued an Imminent and Substantial

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Endangerment Determination and Remedial Action Order (the “2009 RAO”)

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requiring certain responsible parties to implement the RAP, including

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excavation and treatment of contaminated soils, and installation of the soil

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vapor extraction system. The respondents did not comply with the 2009

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RAO. In November, 2009, DTSC issued a Final Determination of

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Noncompliance with the RAO.

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g.

Westside took title to the Site pursuant to a county tax deed on

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October 13, 2009 and owned the Site in the period when DTSC incurred

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response costs.

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h.

Between 2010 and 2015, DTSC implemented the RAP prepared

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by the respondents to the 2002 Consent Order.

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3.

DTSC took response actions necessary to remove and remedy the

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hazardous substances released and/or threatened to be released at and from the Site.

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DTSC’s response actions included, but were not limited to, the following activities:

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additional investigations of contamination at the Site; implementation of the RAP;

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enforcement/cost recovery activities; public participation; and compliance with the

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California Environmental Quality Act. DTSC’s response actions were not

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inconsistent with the National Contingency Plan, 40 C.F.R. Part 300.

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4.

As of April 2016, DTSC’s unreimbursed Response Costs related to the

Site were approximately $2.1 million.
5.

Since April 2016, DTSC has incurred significant additional

enforcement costs that are response costs.
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DTSC and Westside (collectively, the “Parties”) agree, and this Court,

by entering this Consent Decree, finds, that this Consent Decree has been

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negotiated by the Parties in good faith, settlement of this matter will avoid

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expensive, prolonged and complicated litigation between the Parties, and this

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Consent Decree is fair, reasonable, in the public interest and consistent with the

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purpose of CERCLA.

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THEREFORE, the Court, with the consent of the Parties to this Consent

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Decree, hereby ORDERS, ADJUDGES, AND DECREES, as follows:

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II.

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JURISDICTION
7.

The Court has subject matter jurisdiction over the matters alleged in

this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1367(a), and CERCLA

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section 113(b), 42 U.S.C. § 9613(b). It also has personal jurisdiction over each of

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the Parties. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(b) and

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CERCLA section 113(b), 42 U.S.C. § 9613(b). Solely for the purposes of this

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Consent Decree and the underlying Complaint, Westside waives all objections and

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defenses that it may have to the jurisdiction of the Court or to venue in this district.

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Westside shall not challenge the terms of this Consent Decree or this Court’s

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jurisdiction to enter and enforce this Consent Decree.

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8.

The Court shall retain jurisdiction over this matter for the purpose of

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interpreting and enforcing the terms of this Consent Decree if necessary.

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III.

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SETTLEMENT OF DISPUTED CLAIMS
9.

Subject to the reservations of rights in Section VII, this Consent

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Decree resolves all of DTSC’s claims against Westside in the above-captioned

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action. DTSC agrees to resolve Westside’s liability in this action in exchange for

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consideration from Westside, including payment by Westside to reimburse a

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portion of DTSC’s Response Costs incurred at or in connection with releases and/or

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threatened releases of hazardous substances at and/or from the Site.

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10.

Nothing in this Consent Decree shall be construed as an admission by

Westside of any issue of law or fact or of any violation of law. Except as otherwise

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provided by this Consent Decree, this Consent Decree shall not prejudice, waive or

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impair any right, remedy or defense that Westside may have in any other or further

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legal proceeding.

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Westside consents to, and shall not challenge entry of, this Consent

Decree or this Court’s jurisdiction to enter and enforce this Consent Decree.

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12.

Upon approval and entry of this Consent Decree by the Court, this

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Consent Decree shall constitute a final judgment between and among the Parties.

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IV.

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DEFINITIONS
13.

Unless otherwise expressly provided herein, terms used in this Consent

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Decree that are defined in CERCLA or in regulations promulgated under CERCLA

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shall have the meaning assigned to them therein. Whenever terms listed below are

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used in this Consent Decree, the definitions below shall apply.

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14.

“Day” shall mean shall mean a calendar day. In computing any period

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of time under this Consent Decree, where the last day would fall on a Saturday,

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Sunday, or federal or State holiday, the period shall run until the close of business

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of the next Day.

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15.

“DTSC” shall mean the State of California Department of Toxic

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Substances Control and its predecessors and successors. DTSC is a public agency

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of the State of California organized and existing under and pursuant to California

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Health and Safety Code §§ 58000-18. Under California law, DTSC is the state

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agency responsible for determining whether there has been a release and/or

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threatened release of hazardous substances into the environment, and for

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determining the actions to be taken in response thereto.

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16.

“Effective Date” shall mean the date the Court enters an Order

approving this Consent Decree.
17.

“Fair Market Value” shall mean the highest price on the date of

valuation that would be agreed to by a seller, being willing to sell but under no

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particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being

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ready, willing, and able to buy but under no particular necessity for so doing, each

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dealing with the other with full knowledge of all the uses and purposes for which

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the property is reasonably adaptable and available.

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18.

“Parties” shall mean DTSC and Westside.

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19.

“Qualifying Sale” shall mean a sale of the Site within three (3) years of

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the Effective Date, unless Westside has made Substantial and Valuable

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Improvements to the Site. A Qualifying Sale shall not include the sale of the Site at

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a tax auction.

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20.

“Response Costs” shall mean all costs of “removal,” “remedial

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action,” or “response” (as those terms are defined by section 101 of CERCLA, 42

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U.S.C. § 9601), related to the release and/or threatened release of hazardous

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substances at, beneath, and/or from the Site, including in the soils and groundwater.

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21.

“Sale Closing Date” shall mean for a Qualifying Sale the date escrow

closes for the sale of the Site.
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“Sale Proceeds” shall mean for a Qualifying Sale the gross sale price

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for the site, less brokerage commissions, closing costs, and marketing expenses. In

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calculating the Sale Proceeds, other payments from escrow, including any lien

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payments or property tax payments, shall not be deducted from the gross sale price.

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23.

“Site” shall mean the property located at 1550 North Bonnie Beach

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Place, Los Angeles, California, in the County of Los Angeles, California, identified

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by Los Angeles County Assessor’s Parcel Number 5224-026-005 and the areal

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extent of contamination at and emanating from that property, including

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contamination in the soil or groundwater.

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24.

"Substantial and Valuable Improvements" shall include the actual

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construction of significant structural improvements, such as a new building or

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buildings, or other physical improvements that places the property into productive

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use (including, for example, grading and paving the whole property to be a parking

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lot), but does not include permit approvals or grants of entitlement for construction

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of significant structural improvements, such as a new building or buildings and

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does not include minor physical improvements such as fencing.

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V.

WESTSIDE’S OBLIGATIONS
25.

Westside or its designee shall pay DTSC $175,000 within thirty (30)

Days of the Effective Date.
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For the period of three (3) years from the Effective Date, Westside will

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give DTSC written and email notice of any sale agreement Westside enters for the

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Site or of any notice Westside receives that the Site will be offered at a tax auction.

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Westside will give such notice within five (5) days of either entering the agreement

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or receiving notice of the tax sale.

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27.
following:

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In the event of a Qualifying Sale, Westside shall comply with the
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The sale price shall be no less than the Fair Market Value of the

b.

Within thirty (30) Days of the Sale Closing Date, Westside shall

Site.

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convey the following information to DTSC: 1) the gross sale price; 2) the

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Sale Proceeds, 3) the total property tax that Westside has paid for the Site up

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to the Sale Closing Date and 4) the legal fees directly related to the Site that

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Westside owes to Allen Matkins (including for services previously provided).

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Westside shall provide documentation of the foregoing information. The

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adequacy of that documentation will be subject to DTSC’s approval, which

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approval will not be unreasonably withheld.

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c.

In the event the Net Sale Proceeds exceeds the sum of 1)

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$175,000 (Westside’s payment to DTSC); 2) $80,000 (Westside’s purchase

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price); 3) Westside’s property tax payments for the Site as documented

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pursuant to Paragraph b; and 4) Westside’s legal fees as documented

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pursuant to Paragraph b, then Westside shall pay half of the amount

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exceeding that sum to DTSC. That payment shall be due within thirty (30)

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Days of the Sale Closing Date.

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28.

In the event that the Site is sold in a tax auction, any proceeds from

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that sale are conveyed to Westside pursuant to the Revenue and Taxation Code, and

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the amount conveyed to Westside exceeds the sum of 1) $175,000 (Westside’s

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payment to DTSC); 2) $80,000 (Westside’s purchase price); and 3) Westside’s

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legal fees as documented pursuant to Paragraph 27.b, then Westside shall pay half

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of the amount exceeding that sum to DTSC. That payment shall be due within thirty

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(30) Days of the date that Westside receives the payment.

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29.

The payment(s) specified in Paragraph 25 and (if any) Paragraph 27

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shall be made by certified or cashier’s check(s) made payable to Cashier, California

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Department of Toxic Substances Control, and shall bear on its face both the docket

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number of this proceeding and the phrase “Site Code 300432.” On request, DTSC

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will provide instructions for payment by electronic funds transfer.

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The payment shall be sent to:
Cashier
Accounting Office, MS-21A
California Department of Toxic Substances Control
1001 I Street
P.O. Box 806
Sacramento, CA 95812-0806

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A copy of the check shall be mailed to:

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Robert Sullivan, Attorney
California Department of Toxic Substances Control
Office of Legal Counsel, MS-23A
1001 I Street
P.O. Box 806
Sacramento, CA 95812-0806

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Or e-mailed to [e-mail] in .pdf or .jpg format.

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30.

No later than thirty (30) Days after the Effective Date, Westside shall

record the land-use covenant for the Site that appears as Exhibit A to this Consent
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Decree. Nothing herein shall prevent Westside from recording the land-use

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covenant prior to thirty (30) Days after the Effective Date.”

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31.

No later than thirty (30) Days after the Effective Date, Westside shall

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dismiss with prejudice its appeal in State of Cal. DTSC v. Westside Delivery, LLC,

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et al., 9th Circuit Case No. 18-55868, CDCA Case No. 2:17-cv-00785-R-RAO

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(9th Cir., filed 06/28/18). This requirement shall be moot if the appeal is no longer

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pending.

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32.

This Consent Decree is conditioned upon full execution of Westside’s

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obligations in Paragraphs 25 through 31. If these conditions are not met, then this

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Consent Decree, including the covenant not to sue in Section VI, shall be voidable

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at the discretion of DTSC, and DTSC may proceed to litigate the Complaint against

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Westside.

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33.

Within thirty (30) Days after Westside makes the payment required by

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Paragraph 25, DTSC shall terminate the lien it imposed on the Site.

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VI.

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COVENANT NOT TO SUE BY DTSC
34.

Except as expressly provided in Section VII (DTSC’s Reservation of

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Rights) of this Consent Decree, DTSC covenants not to sue Westside pursuant to

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CERCLA, the California Hazardous Substances Account Act, Cal. Health & Safety

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Code sections 25300-25395.3 to: (a) recover DTSC’s Response Costs related to the

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Site, including Response Costs associated with groundwater remediation relating to

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any hazardous substances released at the Site; or (b) require Westside to conduct

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response actions, including removal or remedial actions, related to the release

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and/or threatened release of hazardous substances at or from the Site, including the

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soil and groundwater. As stated in Paragraph 32, this Covenant Not to Sue is

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conditioned upon the complete and satisfactory performance by Westside of all its

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obligations under this Consent Decree.

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VII. DTSC’S RESERVATION OF RIGHTS
35.

Claims Regarding Other Matters. DTSC reserves, and this Consent

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Decree is without prejudice to, all rights against Westside with respect to all matters

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not expressly included within DTSC’s Covenant Not to Sue (Section VI).

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36.

Reservation of Claims. DTSC reserves, and this Consent Decree is

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without prejudice to, all rights against Westside with respect to the following

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matters:

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a.

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Decree;

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b.

Failure of Westside to meet the requirements of this Consent
Damage to natural resources, as defined in CERCLA section

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101(6), 42 U.S.C. § 9601(6), including all costs incurred by any natural

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resources trustees;

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c.

Liability resulting Westside’s introduction of any hazardous

substance, pollutant, or contaminant to the Site after the Effective Date;

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d.

Liability resulting from overt acts by Westside after the

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Effective Date that cause the exacerbation of the hazardous substance

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conditions existing at or from the Site;

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e.

disposal of hazardous substances at sites or locations other than the Site; and

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Claims based on liability arising from the past, present, or future

f.
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Claims based on criminal liability.

Government Authority. Except as expressly provided in the Consent

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Decree, nothing in the Consent Decree is intended nor shall it be construed to

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preclude DTSC from exercising its authority under any law, statute or regulation.

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Furthermore, nothing in the Consent Decree is intended, nor shall it be construed, to

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preclude any other state agency, department, board or entity or any federal entity

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from exercising its authority under any law, statute or regulation.

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38.

Claims Against Other Persons. DTSC reserves, and this Consent

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Decree is without prejudice to, all rights, claims, and causes of action DTSC may

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have against any person other than Westside. Nothing in this Consent Decree is

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intended to be nor shall it be construed as a release, covenant not to sue, or

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compromise of any claim or cause of action, which DTSC may have against any

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person or other entity that is not Westside.

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39.

Unknown Conditions/New Information. Notwithstanding any other

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provision in the Consent Decree, DTSC reserves, and this Consent Decree is

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without prejudice to, the right to institute proceedings in this action or in a new

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action, and/or to issue an administrative order seeking to compel Westside to

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perform response activities at the Site and/or to pay DTSC for additional Response

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Costs, if:

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a.

conditions previously unknown to DTSC, for which Westside is

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liable under any statute or law, are discovered at the Site after the Effective

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Date, and these conditions indicate that a hazardous substance has been or is

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being released at the Site or there is a threat of such release into the

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environment and that the response performed at the Site is not protective of

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human health and the environment (“Unknown Conditions”); or

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b.

DTSC receives information after the Effective Date that was not

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available to DTSC at the time of the Effective Date, concerning matters for

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which Westside is liable, and that information results in a determination that

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the response performed at the Site is not protective of human health and the

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environment (“New Information”).

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VIII. COVENANT NOT TO SUE BY WESTSIDE
40.

Westside covenants not to sue, and agrees not to assert any claims or

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causes of action against DTSC or any DTSC contractors or employees that arise out

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of the transaction or occurrence that is the subject matter of the Complaint, or for

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any injuries, losses, costs, or damages caused or incurred as a result of the

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performance of the requirements of this Consent Decree or the DTSC’s response

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actions at the Site.

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41.

This Section VIII (Covenant Not to Sue by Westside) does not pertain

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to any matters other than those specifically addressed in this Consent Decree,

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applies only to DTSC and does not extend to any other department, agency, board

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or body of the State of California. Westside reserves, and this Consent Decree is

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without prejudice to, all rights against DTSC with respect to all other matters not

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expressly included within the scope of this Consent Decree.

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42.

In any legal proceedings that DTSC may initiate against Westside for

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non-compliance with this Consent Decree, and subject to this Consent Decree,

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Westside may raise any and all defenses that Westside deems to be relevant to the

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issue of whether or not they have complied with the terms of this Consent Decree.

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IX.

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EFFECT OF SETTLEMENT AND CONTRIBUTION PROTECTION
43.

With regard to claims for contribution against Westside for “Matters

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Addressed” in this Consent Decree, the Parties agree, and the Court finds as

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follows:

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a.

This Consent Decree constitutes a judicially approved settlement

within the meaning of CERCLA section 113(f)(2), 42 U.S.C. § 9613(f)(2).
b.

This Consent Decree requires that Westside pay certain costs

with respect to its alleged liability at the Site.
c.

Westside is entitled to the contribution protection provided by

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CERCLA section 113(f)(2), 42 U.S.C. § 9613(f)(2), and by state statutory

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and common law for the “Matters Addressed” in this Consent Decree, except

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for actions and claims identified in Section VII (DTSC’s Reservation of

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Rights).

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44.

“Matters Addressed”. The “Matters Addressed” in this Consent Decree

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are all response actions taken or to be taken and all Response Costs incurred or to

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be incurred at or in connection with the Site by DTSC.

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45.

The protection provided for in this Section IX is conditioned upon

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compliance by Westside with its obligations under Paragraphs 25 through 31 of this

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Consent Decree.

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46.

Nothing in this Consent Decree limits or impairs the right of DTSC to

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pursue any person other than Westside for unrecovered Response Costs incurred by

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DTSC.

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47.

The Court shall retain jurisdiction over this matter for the purpose of

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interpreting and enforcing the terms of this Consent Decree if necessary.

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X.

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NOTIFICATION
48.

Notification to or communication among the Parties as required or

provided for in this Consent Decree shall be addressed as follows:
For DTSC:
Safouh Sayed, Project Manager
Cypress Cleanup Program
California Department of Toxic Substances Control
Corporate Avenue
Cypress, CA 91311-6505
Robert Sullivan
California Department of Toxic Substances Control
Office of Legal Counsel, MS-23A
P.O. Box 806
Sacramento, CA 95812-0806
For Westside:
Emily Murray
Allen Matkins Leck Gamble Mallory & Natsis LLP
865 South Figueroa Street, Suite 2800
Los Angeles, CA 90017-2543

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XI.

GENERAL PROVISIONS
49.

Parties Bound. This Consent Decree shall apply to, be binding upon,

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and inure to the benefit of the Parties and their representatives, successors, heirs,

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legatees, and assigns.

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50.

No Rights in Other Parties. Except as provided in Paragraph 49

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regarding parties bound, nothing in this Consent Decree shall be construed to create

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any rights in, or grant any cause of action to, any person not a Party to this Consent

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Decree or a Related Person.

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51.

No Waiver of Enforcement. The failure of DTSC to enforce any

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provision of this Consent Decree shall in no way be deemed a waiver of such

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provision or in any way affect the validity of this Consent Decree. The failure of

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DTSC to enforce any such provision shall not preclude it from later enforcing the

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same or any other provision of this Consent Decree.

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52.

Attorneys’ Fees. Except as expressly provided in this Consent Decree,

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the Parties will not seek to recover attorneys’ fees and/or litigation costs against

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each other.

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53.

Final Agreement. This Consent Decree constitutes the final, complete

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and exclusive agreement and understanding between the Parties with respect to the

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settlement embodied in this Consent Decree.

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54.

Modifications. This Consent Decree may be modified only upon

written approval of the Parties and with the consent of the Court.
55.

Signatories. Each signatory to this Consent Decree certifies that he or

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she is fully authorized by the Party he or she represents to enter into the terms and

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conditions of this Consent Decree, to execute it on behalf of the Party represented,

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and to legally bind that Party to all the terms and conditions of this Consent Decree.

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56.

Counterparts. This Consent Decree may be executed in two or more

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counterparts, each of which shall be deemed an original, but all of which together

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shall constitute one and the same instrument.

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57.

Agent. Westside has appointed and authorized the agents identified in

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Paragraph 48 to this Consent Decree to receive notices with respect to all matters

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arising under or relating to this Consent Decree.

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XII. ENTRY OF THE CONSENT DECREE

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58.

This Consent Decree shall be lodged with the Court for a period of not

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less than thirty (30) Days. The Consent Decree also is subject to a public comment

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period of not less than thirty (30) Days. DTSC may modify or withdraw its consent

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to this Consent Decree if comments received during the public comment period

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disclose facts or considerations that indicate that this Consent Decree is

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inappropriate, improper or inadequate. Westside consents to the entry of this

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Consent Decree without further notice.

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59.

If, for any reason, the Court declines to approve this Consent Decree in

16

the form presented, this Consent Decree is voidable at the sole discretion of any

17

Party and the terms of the Consent Decree may not be used as evidence in any

18

litigation between the Parties.

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20
21
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60.

Upon entry of this Consent Decree by the Court, this Consent Decree

shall constitute the final judgment between DTSC and Westside.
The Court finds that there is no just reason for delay and therefore enters this
judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

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IT IS SO ORDERED, ADJUDGED, AND DECREED.

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26
27
28

Dated:

April 25, 2019

Party Signatures on pages to follow

United States District Judge
STEPHEN V. WILSON

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[Proposed] Consent Decree
with Westside Delivery, LLC

Exhibit A

RECORDING REQUESTED BY
Department of Toxic Substances Control
and
Westside Delivery, LLC
11693 San Vicente Blvd # 579
Los Angeles, CA 90049
WHEN RECORDED MAIL TO:
Department of Toxic Substances Control
5796 Corporate Ave
Cypress, California 90630
Attention: Robert Senga, Unit Chief
Brownfields and Environmental Restoration Program
(Space Above For Recorder's Use)

LAND USE COVENANT AND AGREEMENT
ENVIRONMENTAL RESTRICTIONS
County of Los Angeles, Assessor Parcel Number(s): 5224-026-005
Davis Chemical Site
Department Site Code: 300432
_____________________________________________________________________
This Land Use Covenant and Agreement ("Covenant") is made by and between Westside
Delivery, LLC, (the "Covenantor"), the current owner of property located at 1550 North
Bonnie Beach Place, in the County of Los Angeles, State of California (the "Property"),
and the Department of Toxic Substances Control (the "Department"). Pursuant to Civil
Code section 1471, the Department has determined that this Covenant is reasonably
necessary to protect present or future human health or safety or the environment as a
result of the presence on the land of hazardous materials as defined in Health and Safety
Code section 25260. The Covenantor and the Department hereby agree that, pursuant
to Civil Code section 1471 and Health and Safety Code, sections 25227 and 25355.5, the
use of the Property shall be restricted as set forth in this Covenant and that the Covenant
shall conform with the requirements of California Code of Regulations, title 22, section
67391.1.

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ARTICLE I
STATEMENT OF FACTS
1.1.

Property Location. The Property that is subject to this Covenant, totaling

approximately 1/3 acres is more particularly described in the attached Exhibit A, "Legal
Description", and depicted in Exhibit B. The Property is located in an area that consists
of light industrial facilities with exception of a residence located on an adjacent property
uphill and to the south southeast of the site. The Property is also identified as County of
Los Angeles, Assessor Parcel Number(s) 5224-026-005.
1.2.

Remediation of Property.

This Property has been investigated and/or

remediated under the Department's oversight. The Department approved a Remedial
Action Plan, in accordance with Health and Safety Code, division 20, chapter 6.8. The
remedial activities conducted at the Property include excavation of soil impacted by
volatile organic compounds (VOCs) and installation of a soil vapor extraction
(SVE) system. Hazardous substances, including PCE at concentrations up to 43 ppm,
TCE at concentrations up to 35 ppm, and cis-1,2-DCE at concentrations up to 2.0 ppm,
remain at the Property above levels acceptable for unrestricted land use.
1.3.

Human Health Risk Assessment. In connection with the Remedial Action

Plan, a Screening Human Health Risk Assessment and Presumptive Feasibility
Study Report (HHRA) was prepared to assess the human health risk following
completion of the remediation pursuant to the Remedial Action Plan. A copy of the HHRA
is attached hereto as Exhibit C. The HHRA assumed that the remediated Property would
be regraded for commercial and/or industrial development based on the needs of the
Property owner. (HHRA pg. 47.) The HHRA concluded that the preferred remedial
alternative under the Remedial Action Plan would eliminate or reduce to acceptable levels
the identified risks from the soils, and would provide a long-term, permanent solution to
allow the Property to be developed for future commercial or industrial use. (HHRA pg.
51.)
1.4.

Basis for Environmental Restrictions.

As a result of the presence of

hazardous substances, which are also hazardous materials as defined in Health and

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Safety Code section 25260, at the Property, the Department has concluded that it is
reasonably necessary to restrict the use of the Property in order to protect present or
future human health or safety or the environment, and that this Covenant is required as
part of the Department-approved remedy for the Property. The Department has also
concluded that the Property, as remediated and when used in compliance with the
Environmental Restrictions of this Covenant, does not present an unacceptable risk to
present and future human health or safety or the environment.
ARTICLE II
DEFINITIONS
2.1.

Department.

"Department" means the California Department of Toxic

Substances Control and includes its successor agencies, if any.
2.2.

Environmental Restrictions.

"Environmental Restrictions" means all

protective provisions, covenants, restrictions, requirements, prohibitions, and terms and
conditions as set forth in this Covenant.
2.3.

Improvements. "Improvements" includes, but is not limited to buildings,

structures, roads, driveways, improved parking areas, wells, pipelines, or other utilities.
2.4.

Lease. "Lease" means lease, rental agreement, or any other document that

creates a right to use or occupy any portion of the Property.
2.5.

Occupant. "Occupant" or "Occupants" means Owner and any person or

entity entitled by ownership, leasehold, or other legal relationship to the right to occupy
any portion of the Property.
2.6.

Owner. "Owner" or "Owners" means the Covenantor, and any successor

in interest including any heir and assignee, who at any time holds title to all or any portion
of the Property.

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ARTICLE III
GENERAL PROVISIONS
3.1.

Runs with the Land. This Covenant sets forth Environmental Restrictions

that apply to and encumber the Property and every portion thereof no matter how it is
improved, held, used, occupied, leased, sold, hypothecated, encumbered, or conveyed.
This Covenant: (a) runs with the land pursuant to Civil Code section 1471 and Health
and Safety Code section 25355.5; (b) inures to the benefit of and passes with each and
every portion of the Property; (c) is for the benefit of, and is enforceable by the
Department; and (d) is imposed upon the entire Property unless expressly stated as
applicable only to a specific portion thereof.
3.2.

Binding upon Owners/Occupants. This Covenant: (a) binds all Owners of

the Property, their heirs, successors, and assignees; and (b) the agents, employees, and
lessees of the Owners and the Owners' heirs, successors, and assignees. Pursuant to
Civil Code section 1471, all successive Owners of the Property are expressly bound
hereby for the benefit of the Department; this Covenant, however, is binding on all Owners
and Occupants, and their respective successors and assignees, only during their
respective periods of ownership or occupancy except that such Owners or Occupants
shall continue to be liable for any violations of, or non-compliance with, the Environmental
Restrictions of this Covenant or any acts or omissions during their ownership or
occupancy.
3.3.

Incorporation into Deeds and Leases. This Covenant shall be incorporated

by reference in each and every deed and Lease for any portion of the Property entered
into after the date of recordation of this Covenant.
3.4.

Conveyance of Property. The Owner and new Owner shall provide Notice

to the Department not later than 30 calendar days after any conveyance or receipt of any
ownership interest in the Property (excluding Leases, and mortgages, liens, and other
non-possessory encumbrances). The Notice shall include the name and mailing address
of the new Owner of the Property and shall reference the site name and site code as
listed on page one of this Covenant. The notice shall also include the Assessor's Parcel

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Number(s) noted on page one. If the new Owner's property has been assigned a different
Assessor Parcel Number, each such Assessor Parcel Number that covers the Property
must be provided. The Department shall not, by reason of this Covenant, have authority
to approve, disapprove, or otherwise affect proposed conveyance, except as otherwise
provided by law or by administrative order.
3.5.

Costs of Administering the Covenant to Be Paid by Owner. The Department

has already incurred and will in the future incur costs associated with this Covenant.
Therefore, the Covenantor hereby covenants for the Covenantor and for all subsequent
Owners that, pursuant to California Code of Regulations, title 22, section 67391.1(h), the
Owner agrees to pay the Department's costs in administering, implementing and
enforcing this Covenant incurred after the date of recordation of this Covenant.
ARTICLE IV
RESTRICTIONS AND REQUIREMENTS
4.1.

Restricted Uses. Health and Safety Code, section 25227 provides that a

person shall not engage in any of the following on land that is subject to a recorded land
use restriction pursuant to Health and Safety Code, section 25355.5, unless the person
obtains a specific approval in writing from the Department for the land use on the land in
question:
(a)

A new use of the land, other than the use, modification, or

expansion of an existing industrial or manufacturing facility or complex on land that
is owned by, or held for the beneficial use of, the facility or complex on or before
January 1, 1981.
(b)

Subdivision of the land, as that term is used in Division 2

(commencing with Section 66410) of Title 7 of the Government Code , except that
this subdivision does not prevent the division of a parcel of land so as to divide that
portion of the parcel that contains hazardous materials, as defined in subdivision
(d) of Section 25260 , from other portions of that parcel.

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(c)

Construction or placement of a building or structure on the

land that is intended for use as any of the following, or the new use of an existing
structure for the purpose of serving as any of the following:
(1)

(A)

Except as provided in subparagraph (B), a residence,

including a mobile home or factory built housing constructed or installed for
use as permanently occupied human habitation.
(B)

The addition of rooms or living space to an existing

single-family dwelling or other minor repairs or improvements to
residential property that do not change the use of the property,
increase the population density, or impair the effectiveness of a
response action, shall not constitute construction or placement of a
building or structure for the purposes of subparagraph (A).
(2)

A hospital for humans.

(3)

A school for persons under 21 years of age.

(4)

A day care center for children.

(5)

A permanently occupied human habitation, other than those

used for industrial purposes.
4.2.

Permitted Uses. Consistent with Health and Safety Code, section 25227,

and as documented in the HHRA, the Department does not consider the use of the
Property for commercial or industrial use a new use. The development and use of the
Property for future commercial and/or industrial uses remains subject to the soil
management requirements and prohibited activities listed herein. Should site conditions
be altered beyond those conditions in the approved HHRA, an updated HHRA may be
required by the Department.
4.3.

Soil Management. Soil management activities at the Property are subject

to the following requirements in addition to any other applicable Environmental
Restrictions:
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(a)

No activities that will disturb the soil (e.g., excavation, grading,

removal, trenching, filling, earth movement, mining, or drilling) shall be allowed at
the Property without a Soil Management Plan pre-approved by the Department in
writing.
(b)

Any soil brought to the surface by grading, excavation,

trenching or backfilling shall be managed in accordance with all applicable
provisions of state and federal law.
4.4.

Prohibited Activities. The following activities shall not be conducted at the

Property:
(a)

Drilling for any water, oil, or gas without prior written approval

by the Department.
(b)

Extraction or removal of groundwater without a Groundwater

Management Plan pre-approved by the Department in writing.
4.5.

Access for Department. The Department shall have reasonable right of

entry and access to the Property for inspection, investigation, remediation, monitoring,
and other activities as deemed necessary by the Department in order to protect human
health or safety or the environment.
4.6.

Annual Inspection and Reporting Requirements. The Owner shall conduct

an annual inspection of the Property verifying compliance with this Covenant and shall
submit an annual inspection report to the Department for its approval by January 30 of
each year. The annual inspection report should include the dates, times, and names of
those who conducted the inspection and reviewed the annual inspection report. It also
should describe how the observations that were the basis for the statements and
conclusions in the annual inspection report were performed (e.g., drive by, fly over, walk
in, etc.). If any violation is noted, the annual inspection report must detail the steps taken
to correct the violation and return to compliance. If the Owner identifies any violations of
this Covenant during the annual inspection or at any other time, the Owner must within
10 calendar days of identifying the violation: (a) determine the identity of the party in
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violation; (b) send a letter advising the party of the violation of the Covenant; and
(c) demand that the violation cease immediately.

Additionally, a copy of any

correspondence related to the violation of this Covenant shall be sent to the Department
within 10 calendar days of its original transmission.
4.7.

Five-Year Review. As set forth in Sections 1.2 and 1.4, the Property was

remediated under the Department's oversight, and this Covenant is required as part of
the Department-approved remedy for the Property. The Department has also concluded
that the Property, as remediated and when used in compliance with the Environmental
Restrictions of this Covenant, does not present an unacceptable risk to present and future
human health or safety or the environment. In addition to the annual reviews noted above,
after a period of five (5) years from date of recordation of this Covenant and every five
(5) years thereafter, Owner shall submit a Five-Year Review report documenting
continued compliance with the Environmental Restrictions of this Covenant. The report
shall describe the results of all inspections and any sampling analyses, tests and other
data generated or received by Owner. As a result of any review work performed, DTSC
may require Owner to perform additional review work or modify the review work previously
performed by Owner.
ARTICLE V
ENFORCEMENT
5.1.

Enforcement.

Failure of the Owner or Occupant to comply with this

Covenant shall be grounds for the Department to require modification or removal of any
Improvements constructed or placed upon any portion of the Property in violation of this
Covenant. Violation of this Covenant shall be grounds for the Department to pursue
administrative, civil, or criminal actions, as provided by law.
ARTICLE VI
VARIANCE, REMOVAL AND TERM
6.1.

Variance from Environmental Restrictions. Any person may apply to the

Department for a written variance from any of the Environmental Restrictions imposed by

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this Covenant. Such application shall be made in accordance with Health and Safety
Code section 25223.
6.2.

Removal of Environmental Restrictions.

Any person may apply to the

Department to remove any of the Environmental Restrictions imposed by this Covenant
or terminate the Covenant in its entirety. Such application shall be made in accordance
with Health and Safety Code section 25224.
6.3.

Term. Unless ended in accordance with paragraph 6.2, by law, or by the

Department in the exercise of its discretion, this Covenant shall continue in effect in
perpetuity.
ARTICLE VII
MISCELLANEOUS
7.1.

No Dedication Intended.

Nothing set forth in this Covenant shall be

construed to be a gift or dedication, or offer of a gift or dedication, of the Property, or any
portion thereof, to the general public or anyone else for any purpose whatsoever.
7.2.

Recordation.

The Covenantor shall record this Covenant, with all

referenced Exhibits, in the County of Los Angeles within 10 calendar days of the
Covenantor's receipt of a fully executed original.
7.3.

Notices. Whenever any person gives or serves any Notice ("Notice" as

used herein includes any demand or other communication with respect to this Covenant),
each such Notice shall be in writing and shall be deemed effective: (a) when delivered,
if personally delivered to the person being served or to an officer of a corporate party
being served; or (b) five calendar days after deposit in the mail, if mailed by United States
mail, postage paid, certified, return receipt requested:
To Owner:
Westside Delivery, LLC
11693 San Vicente Blvd # 579
Los Angeles, CA 90049

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And
To Department:
5796 Corporate Ave
Cypress, California 90630
Attention: Robert Senga, Unit Chief
Brownfields and Environmental Restoration Program
Any party may change its address or the individual to whose attention a Notice is to be
sent by giving advance written Notice in compliance with this paragraph.
7.4.

Partial Invalidity. If this Covenant or any of its terms are determined by a

court of competent jurisdiction to be invalid for any reason, the surviving portions of this
Covenant shall remain in full force and effect as if such portion found invalid had not been
included herein.
7.5.

Statutory References.

All statutory or regulatory references include

successor provisions.
7.6.

Incorporation of Exhibits. All exhibits and attachments to this Covenant are

incorporated herein by reference.
[SIGNATURES ON NEXT PAGE]

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IN WITNESS WHEREOF, the Covenantor and the Department hereby execute this
Covenant.
Covenantor:

Westside Delivery LLC

By:
Title:

Print Name and Title of Signatory

Date:
Department of Toxic Substances Control:
By:
Title:

Print Name and Title of Signatory

Date:

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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.

State of California
County of ______________________

)
)

On _________________________, before me,

(insert name of notary)

,

Notary Public, personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature

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(Seal)

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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.

State of California
County of ______________________

)
)

On _________________________, before me,

(insert name of notary)

,

Notary Public, personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature

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(Seal)

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EXHIBIT A
LEGAL DESCRIPTION

The legal description of the property is as follows:

TRACT # 6479 LOTS 9 AND LOT 10 BLK G

APN: 5224-026-005

EXHIBIT B
SITE

Exhibit C