State of California Department of Toxic Substances Control v. SU-DALE-CO. Inc., et al.

Filing 57

CONSENT DECREE BETWEEN PLAINTIFF AND DEFENDANTS SU-DALE-CO INC dba SUPERIOR PLATING COMPANY, KENNETH JEFFERS, ADRIENNE FORESTER, AND LEONARD FORESTER by Judge Michael W. Fitzgerald. JEFFERS' & SUPERIOR PLATING'S SETTLEMENT OBLIGATI ONS - Jeffers, on behalf of himself and Superior Plating, shall pay to Plaintiff the sum of one hundred-twenty-eight thousand dollars ($128,000), for partial reimbursement of Plaintiff's Response Costs incurred at the Site. THE FORESTERS' SETTLEMENT OBLIGATIONS - The Foresters shall pay to Plaintiff the sum of forty 8 thousand dollars ($40,000) in accordance with paragraph 36. (See attached document for details.) ( MD JS-6. Case Terminated ) (lom)

JS-6

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January 24, 2017

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023

Exhibit A
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024

RECORDING REQUESTED BY:

Mr. Kenneth Jeffers, Owner
P.O. Box 290572
Phelan, California 92329

WHEN RECORDED, MAIL TO:

Department of Toxic Substances Control
5796 Corporate Avenue
Cypress, California 90630
Attention: Emad B. Yemut, Unit Chief
(Cleanup Program School Evaluation and
Brownfields Outreach - Cypress)
SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE

LAND USE COVENANT AND AGREEMENT
ENVIRONMENTAL RESTRICTIONS
County of Los Angeles, Assessor Parcel Number(s): 8326-025-021
Superior Plating Company
Project Codes 301496 and 550554
_____________________________________________________________________
This Land Use Covenant and Agreement ("Covenant") is made by and between Mr.
Kenneth Jeffers (“Covenantor”), the current owner of property located at 389 N. East
End Avenue, Pomona, 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 section 25355.5, the
use of the Property 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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Exhibit A
025

ARTICLE I
STATEMENT OF FACTS
1.1.

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

approximately 0.25 acres, is more particularly described in the attached Exhibit A, Legal
Description and depicted in Exhibit B, Assessor’s Parcel Map and Confirmation Soil
Sample Location and Area of Excavation Map. The Property is located at 389 N. East
End Avenue in Pomona, California and is bordered by North East End Avenue, Village
Academy High School, and Pueblo Elementary School to the east. The Property is
also identified as County of Los Angeles, Assessor’s Parcel Number 8326-025-021.
1.2.

Remediation of Property. This Property has been investigated and

remediated under the Department’s oversight. The Department approved a Final
Removal Action Workplan (RAW) on July 26, 2012, in accordance with Health and
Safety Code, division 20, chapter 6.8. The remediation activities conducted at the
Property include soil removal of hazardous substances from impacted areas, including
Arsenic, Hexavalent Chromium, Nickel and Lead.
The Removal Action Completion Report (RACR) indicates that upon the
completion of implementation of the RAW, soils with metals concentrations remain at
the Property within acceptable ranges for commercial/industrial land use, but above
levels acceptable for unrestricted land use.
1.3.

Basis for Environmental Restrictions. As a result of the presence of

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

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Exhibit A
026

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.
2.7.

Hedge Area. “Hedge Area” means the area located along the southern

perimeter of the Property depicted in green on the Confirmation Soil Sample Location
and Area of Excavation Map contained in Exhibit B hereto.
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.

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Exhibit A
027

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.
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 Number(s) noted on page one. If the new Owner’s property has been
assigned a different Assessor’s Parcel Number, each such Assessor’s 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 covenant 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.

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Exhibit A
028

ARTICLE IV
RESTRICTIONS AND REQUIREMENTS
4.1.

Prohibited Uses. The Property shall not be used for any of the following

purposes without prior written approval by the Department:
(a)

A residence, including any mobile home or factory built housing,
constructed or installed for use as residential human habitation.

(b)

A hospital for humans.

(c)

A public or private school for persons under 18 years of age.

(d)

A day care center for children.

4.2.

Soil Management. Soil management activities at the Property are subject

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

Except for those activities specified in the RAW as approved by the
Department on July 26, 2012, no activities that will disturb the soil (e.g.,
excavation, grading, removal, trenching, filling, earth movement, mining,
or drilling) within the Hedge Area, shall be allowed at the Property without
a Soil Management Plan pre-approved by the Department in writing.

(b)

Except for those activities specified in the RAW as approved by the
Department on July 26, 2012, no activities that will disturb the soil (e.g.,
excavation, grading, removal, trenching, filling, earth movement, mining,
or drilling) at a depth exceeding twenty-four inches in any area of the
Property outside the Hedge Area shall be allowed at the Property without
a Soil Management Plan pre-approved by the Department in writing.

(c)

Any soil brought to the surface by excavation, grading, removal, trenching,
filling, earth movement, mining, or drilling shall be managed in accordance
with all applicable provisions of state and federal law.

4.3.

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)

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Extraction or removal of groundwater without a Groundwater Management

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Exhibit A
029

Plan pre-approved by the Department in writing.
(c)

Activity that may alter, interfere with, or otherwise affect the integrity or
effectiveness of, or the access to, any investigative, remedial, monitoring,
operation or maintenance system (e.g., cap, vapor extraction system,
monitoring system, groundwater extraction system) or activity required for
the Property without prior written approval of the Department.

4.4.

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.
4.5.

Access for Implementing Operation and Maintenance. The entity or

person responsible for implementing the operation and maintenance activities, if any,
shall have reasonable right of entry and access to the Property for the purpose of
implementing such operation and maintenance activities until the Department
determines that no further operation and maintenance activity is required.
4.6.

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 15th of
each year. The annual inspection report must include the dates, times, and names of
those who conducted the inspection and reviewed the annual inspection report. It also
shall 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 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

4846-6847-0574.1

Five-Year Review. In addition to the annual reviews noted above, after

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Exhibit A
030

a period of five (5) years from the executed date of this Covenant and every five (5)
years thereafter, the Owner shall submit a Five-Year Review report documenting its
review and evaluation of the remedy implemented to determine if human health and the
environment are being adequately protected by the remedy as implemented. The report
shall describe the results of all inspections, sampling analyses, tests, and other data
generated or received by the Owner and evaluate the adequacy of the implemented
remedy in protecting human health and the environment. As a result of any review work
performed, the Department 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, such as failure to submit (including submission of
any false statement) record or report to the Department, 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 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 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.

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Exhibit A
031

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. Notices shall be
sent to the following persons:
To Owners:

Mr. Kenneth Jeffers,
P.O. Box 290572
Phelan, California 92329

To Department:

Emad B. Yemut, P.E., Unit Chief
Department of Toxic Substances Control
5796 Corporate Avenue
Cypress, California 90630

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.

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Exhibit A
032

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

Kenneth Jeffers

By:
Title:
Print Name and Title of Signatory
Date:
Department of Toxic Substances Control
By:
Title:
Emad B. Yemut, P.E., Unit Chief
Date:

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Exhibit A
033

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,
(space above this line is for name and title of the officer/notary),
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,

_______________________________ (seal)
Signature of Notary Public

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Exhibit A
034

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,
(space above this line is for name and title of the officer/notary),
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,

_______________________________ (seal)
Signature of Notary Public

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Exhibit A
035

Exhibit A

“Legal Description”

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Exhibit A
036

Situs Address: 389 S EAST END AVE
POMONA, CA 91766
FIPS Code: LOS ANGELES
FIPS Sub Code: 000
FIPS State Code: CALIFORNIA
APN Sequence Number: 1
Unformatted APN: 8326025021
Formatted APN: 8326-025-021
Original APN: 8326 025 021
Property Indicator: INDUSTRIAL LIGHT
Land Use: LIGHT INDUSTRIAL
Zoning: POM1*
Land Square Footage: 10575
Acres: 0.2428
PROPERTY INFORMATION
Subdivision Name: POMONA TR
Subdivision Plat
Book: 3
Subdivision Plat
Page: 96
Legal Description: TR=POMONA TRACT LOT COM S 61 FT FROM SE COR OF
LOT 3 PM 91-80-81 TH S 61 FT WITH UNIFORM DEPTH OF 175 FT W
POR OF LOT 214
Block Number: 214
Lot Number: 214

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Exhibit A
037

Exhibit B
Assessor’s Parcel Map
and
Confirmation Soil Sample Location and Area of
Excavation Map

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Exhibit A
038

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Exhibit A
039

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Exhibit A
040