Free Settlement Agreement - District Court of Colorado - Colorado

Case 1:04-cv-00627-MSK-BNB

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1N THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civ. Act. No. 04-0627-MSK-BNB

LENNAR COLORADO, LLC, Plaintiff,
VS.

UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF DEFENSE, THE U.S. ARMY, THE U.S. AIR FORCE, and THE U.S. NAVY, Defendants.

CONSENT DECREE WHEREAS, this Consent Decree is entered into by Plaintiff Lennar Colorado, LLC ("Plaintiff' or "Lennar") and by Defendants United States of America, United States Department of Defense, United States Army, United States Air Force, and United States Navy ("United States"), to settle Plaintiff's claims against the United States in this case. WHEREAS, on March 31, 2004, Plaintiff filed its Complaint in this action, alleging that the Defendants are jointly and severally liable to Plaintiff for all of its response costs incurred in investigating and cleaning up the High Plains and Beacon Point Parcels pursuant to CERCLA section 107(a), 42 U.S.C. § 9607(a). Alternatively, Plaintiff alleged that Defendants were liable to Plaintiff in contribution for some or all of those costs pursuant to CERCLA sections 107(a), 42

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U.S.C. § 9607(a), and 113(f), 42 U.S.C. § 9613(f). Plaintiff Lennar and Defendants wish to resolve Plaintiff's claims against Defendants without further litigation and without a litigated resolution of any issue of fact or law. Now, therefore, without admission of any issue of law or fact, the Parties agree as follows: 1. The following definitions shall apply to this Consent Decree: a. "Beacon Point" or "Beacon Point Parcel" means a parcel of land located within the boundaries of the Former Lowry Bombing and Gunnery Range, located in Section 20, and in the West 1/2 of Section 21, Township 5 South, Range 65 West of the Sixth Principal Meridian, County of Arapahoe, State of Colorado. The legal description for Beacon Point is attached hereto as Attachment A. b. "Covered Matters" means all claims made or which could have been made under federal or state law by Plaintiff in its Complaint against the United States in this matter with regard to the High Plains and Beacon Point Parcels, including, but not limited to, claims made pursuant to CERCLA section 107(a), 42 U.S.C. § 9607(a), for cost recovery and/or contribution, and for contribution pursuant to CERCLA section 113 (f), 42 U.S.C. § 9613 (f). c. "High Plains" means parcels of land within the boundaries of the Former Lowry Bombing and Gunnery Range, including (i) Section 33, Township 5 South, Range 65 West of the Sixth Principal Meridian, County of Arapahoe, State of Colorado, the legal description of which is attached hereto as Attachment B, and (ii) two parcels of land, collectively known as the "High Plains Extension," of approximately 22.5 acres in total depicted on two maps attached hereto as Attachment C. d. "Interest" means interest on the terms and conditions and at the rate set forth in -2-

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CERCLA section 107(a)(4), 42 U.S.C. 9607(a)(4). e. "Parties" means Lennar and the United States. f. "Plaintiff' or "Lennar" means Plaintiff Lennar Colorado, LLC, its parent entities, assignors, subsidiaries, successors and all related entities, past and future, as well as their officers, directors, and agents. This term includes, but is not limited to, Lennar Corporation, U.S. Home Corporation, Lennar Homes of Colorado, LLLP, U.S. Home of Colorado, Inc., Heartland Colorado, LLC, and SEA Joint Venture, LLP. g. "RCRA" means the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq. h. "United States" means the United States of America and all of its agencies, departments and instrumentalities, their officers, agents and employees, including but not limited to the Department of Defense, the United States Army, the United States Air Force, and the United States Navy. 2. The United States shall pay to Plaintiff the sum of $4,550,000. If payment is not made within 120 days after entry of this Consent Decree by the Court, Interest will accrue on the unpaid balance beginning on the 121st day after entry of the Consent Decree by the Court until paid. Payment shall be in the form of electronic funds transfer in accordance with instructions provided by Plaintiff's counsel promptly upon entry of the Consent Decree by the Court. 3. All payment obligations by the United States are subject to the availability of appropriated funds applicable for that purpose. No provision of this Consent Decree shall be interpreted as or shall constitute a commitment or requirement that the United States obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable -3-

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provision of law. 4. Lennar covenants not to sue the United States under CERCLA, or any other state or federal statutory or common law, in law or equity, for costs, injunctive relief, natural resource damages, and/or any other relief, in connection with environmental contamination on the High Plains Parcel and the Beacon Point Parcel. This covenant not to sue shall be effective as of the date the United States makes the payment set forth in Paragraph 2 above. This covenant does not extend to claims against the United States for personal injury to third parties accruing after the entry of the Consent Decree. The United States does not waive any defenses it may have to claims made by Lennar. 5. Effective as of the date upon which the United States makes the payment set forth in Paragraph 2 above, Lennar shall indemnify the United States for any costs, natural resource damages, and/or the cost of any injunctive relief, arising under CERCLA, RCRA, the Colorado Hazardous Waste Act, C.R.S. 25-15-301 et seq., or any other law, which the United States incurs or for which it is sought to be held liable by any third party (including but not limited to the State of Colorado and subsequent purchasers of some or all of the High Plains and/or Beacon Point Parcels), in connection with "military munitions," as defined at 10 U.S.C. 101 (e)(4)(A), "munitions constituents," as defined at 10 U.S.C. 2710(e)(3), or inert items associated with military munitions or munitions constituents, now or formerly located on the High Plains and/or Beacon Point Parcels. This indemnification obligation does not extend to claims made by third parties against the United States for personal injury. Lennar's total obligation under this Paragraph shall not exceed $4,550,000. The United States will notify Plaintiff in writing of any complaint or demand made in writing upon the United States that may be subject to the

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indemnification provisions of this Paragraph as soon as practicable. The United States shall be entitled to conduct any defense to such claims by third parties, and is entitled to litigate and/or settle any such claims at its complete and unfettered discretion. The United States agrees to notify Lennar of a proposed settlement of a claim within the scope of this indemnity. 6. a. The Parties acknowledge and agree that the payment to be made by the United

States pursuant to Paragraph 2 of this Consent Decree represents a good faith compromise of disputed claims and that the compromise represents a fair, reasonable, and equitable discharge for Covered Matters. b. With regard to any claims for costs, damages, or other claims against the United States for Covered Matters, the United States is entitled to, as of the date of entry of this Consent Decree, protection from contribution claims pursuant to 42 U.S.C. § 9613(0, and any other applicable provision of federal or state law, whether by statute or common law, extinguishing the liability of the United States to persons not party to this Consent Decree. Any rights the United States or Plaintiff may have to obtain contribution or otherwise recover costs or damages from persons not party to this Consent Decree are preserved. 7. After the effective date of this Consent Decree, Lennar shall give notice to any subsequent purchaser or transferee of Lennar of any portion of the Beacon Point or High Plains Parcels, that those Parcels are located within the boundaries of the Former Lowry Bombing and Gunnery Range; the history of investigations and clearance of military munitions, munitions constituents, or inert items related thereto, on the Parcels; and the risk that military munitions, munitions constituents, or inert items related thereto may remain on the Parcels. Such notice shall include recordation of such a statement in the real property records of Arapahoe County, -5-

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Colorado. Lennar states that it has given actual written notice to entities to which it has, or is in the process of, transferring portions of the Beacon Point or High Plains Parcels that those Parcels are located within the boundaries of the Former Lowry Bombing and Gunnery Range, and the history of investigations and clearance of military munitions, munitions constituents, or inert items related thereto, on the Parcels. 8. This Consent Decree represents the compromise of a disputed claim, and nothing in this Consent Decree is intended to be, or shall be construed as, an admission or adjudication of any issue of fact or law with respect to any liability or responsibility for the High Plains or Beacon Point Parcels or any other area. 9. Nothing in this Consent Decree is intended to be, nor shall be, construed as a waiver, release, or covenant not to sue for any claim or cause of action, administrative or judicial, in law or in equity, which the United States or Plaintiff may have against any person or entity that is not a party to this Consent Decree. 10. This Consent Decree shall be governed and construed under the laws of the United States° 11. This Consent Decree is binding upon the Parties and their respective successors and assigns, all related corporate entities, and officers, directors, and agents. However, this Consent Decree shall not be interpreted to bar or affect the authority of the United States Environmental Protection Agency or any other department, agency, or instrumentality of the United States charged with enforcement of environmental laws and regulations from acting within its authority as to Plaintiff. 12. For all matters regarding which this Consent Decree requires the United States or -6-

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Plaintiff to give notice to the other, such notice shall be given as follows: a. Notice to Plaintiff shall be submitted to the following: Hubert A. Farbes, Jr., Esq. Brownstein Hyatt & Farber, P.C. 410 Seventeenth Street, 22na Floor Denver, CO 80202-4437 b. Notice to the United States shall be submitted to the following: Chief, Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 601 D Street, N.W. Washington, DC 20004 District Counsel U.S. Army Corps of Engineers, Omaha District Office of Counsel 106 S. 15th Street Omaha, NE 68102-1618 A party may change the person to whom notice may be given by written notification to the other party-. 15. Based upon the entire record herein, the Court finds that this Consent Decree is fair, reasonable, and in the public interest. DONE THIS DAY OF 2005. BY THE COURT:

Hon. Marcia S. Krieger United States District Judge

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