brianna bergen - comments and documents for nursery products … · 2019-07-24 · brianna bergen -...

Brianna Bergen - Comments and documents for Nursery Products WDRs 3

Ms Bergen Please consider these comments and documents for your WDRs for Nursery Products LLC or any other Nursery Products or sewage sludge permits: 1. Pictures from the Legal paperwork in the City of Adelanto VS Nursery Products LLC. Shows wastewater spilling onto roadway and public streets. This was a much smaller facility than proposed for Hinkley. Did NPLLC have the same standards than as being placed on them now? Did they violate Lahonton permits in Adelanto? Did Bio-Gro also violate Lahonton permits in Antelope Acres in the late 1990's? Shouldn't this material be handled indoors to better contain the potential problems? The Hinkley facility is expecting 100 trucks a day on unpaved roads without truck washing facilities. 2.and 3. Legal documents from Adelanto showing violations and history of non-compliance and lack of regard of conditions set forth by permitting agencies. 2005 Norman 25789 Community Blvd Barstow, CA 92311 760 963-3585

From: "D. Norman Diaz" <[email protected]>To: Brianna Bergen <[email protected]>Date: 11/23/2009 2:08 PMSubject: Comments and documents for Nursery Products WDRs 3Attachments:

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MARGUERITE P. BATTERSBY (State Bar No. 115422)CITY ATTORNYCITY OF ADELANTO

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GERSHON

Eb blOMITCHELL E. ABBOTT (State Bar No. 64990) Cou t/6%1 ?R C URTT. PETER PIERCE (State Bar No. 160408) V1CTOR\lI!l 'i!JARDINO

GINTTA L. GIOVINCO (State Bar No. 12

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355 South Grand Avenue, 40th Floor JUL 0 82;lIJ5

Los Angeles California 90071-3101 .

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Attorneys for PlaintiffsPeople of the State of California and City of A delan to

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO

VICTORVILLE DISTRICT

PEOPLE OF THE STATE OFCALIFORNA; CITY OF ADELANTO

Plaintiffs

Case No. VCWS 08 B 427COMPLAINT FORPRELIMINARY PERMNENT INJUNCTION ANDFOR MONEY DAMAGES

NUSERY PRODUCTS , LLC;JEFFREY P. MEBERG;CHRSTOPHER M. SENEY; and DOES1 through 20 , inclusive

Defendants.

Complaint for Preliminar and Permanent Injunction and for Money Damages

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Plaintiffs allege:

FIRST CAUSE OF ACTION

(By Plaintiffs Against All Defendants for Preliminary

and Permanent Injunction to Abate a Public Nuisance)

1. This action is brought in the name of the People of the State of

California and the City of Adelanto by the City Attorney of the City of Adelanto

pursuant to Code of Civil Procedure Section 731 to abate a public nuisance.

At all times material hereto , the City of Adelanto was and is a

municipal corporation, duly incorporated and existing under and pursuant to a

Charter and the Constitution of the State of California, and situated within the

County of San Bernardino.

Plaintiffs are informed and believe and thereupon allege that at all

times material hereto, defendant, Nursery Products , LLC , was and is a limited

liability company, duly organized and existing under the laws of the State of

California with its principal office and place of business located at 647 Camino de

los Mares , Suite 108- 174, San Clemente, California


times material hereto, defendant, Jeffrey P. Meberg, was and is the president, sole

shareholder, and owner of Nursery Products , LLC.

5. Plaintiffs are informed and believe and thereupon allege that at all

times material hereto, defendant, Christopher M. Seney, was and is the General

Manager and managing agent responsible for the day-to-day operations of Nursery

Products , LLC.

6. Plaintiffs are ignorant of the true names and capacities, whether

individual , corporate, or otherwise, of the defendants named herein as Does

through 20 , inclusive, and plaintiffs therefore sue these defendants by their

fictitious names. Plaintiffs wil amend this complaint to state the true names and


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capacities of such fictitiously named defendants when the same have been

ascertained.


times material hereto , defendants were and are the owners of that certain 40-acre

parcel of real property (hereinafter referred to as the "subject property ) commonly

known as 16284 Aster Road in the City of Adelanto, and whose legal description

IS:

the SE 1/4 of the SE 1/4 , Tract I, Section 6, TP 5N, R 5W, Ex E 30 ft.

Co. Rd. 39.09 AC MI, S. , County of San Bernardino , (APN:

3128-081-02-0000).

8. The Planning Commission of the City of Adelanto issued a

Conditional Use Permit to defendants for the operation of a composting facility on

the subject property on December 4 2001. Defendants commenced operation of

their "compo sting facility" on the subject property in the Spring of 2002. Contrary

to what the defendants promised when they appeared before the Planning

Commission to obtain their Conditional Use Permit, the compo sting operation

the subject property (involving the organic decomposition of wood, green-waste

and sewage sludge, euphemistically described as "human bio-solids ) has been

responsible for an intense, foul stench, accompanied by swarms of flies, which has

severely affected homes , schools, and businesses in the area of the subject

property.

The City Council of the City of Adelanto conducted a public hearing

on November 5 2003 to receive public comments about the composting facility.

The hearing commenced at 6:00 p.m. and adjourned at 10:43 p.m. During this 4%-

hour hearing, the City Council heard the following testimony (quoted from the

City Council Minutes) from local residents , businessmen, and workers about foul

odors flies , dust, and debris emanating from the composting operation on the

subj ect property:

Complaint for Preliminary and Permanent Injunction and for Money Damages

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Ms. Elly Burd, an employee at the DWP facility across the street from

the composting facility, stated that because of the smell

, "

she found it hard to

breathe and her allergies have been kicking up. She never had allergies before

her eyes are watering, her clothes smell. You open your car door and hundreds of

flies go in.

Ms. Joy Jeannette stated that "She bought a new barbeque gril andhasn t been able to use it because of the flies.

Ms. Sara Ruiz spoke about "the discomfort the kids were having

when they went to Richardson Park to play or practice. Especially the hardship of

the kids who have asthma, their eyes water and turn red.

Ms. Terri Fruergaard stated that "Father s Day was ruined because

they couldn t go outside.

Ms. Elivra Santoyo spoke about "the flies and smell which has

prevented them from doing outside activities. They have to stay indoors and the

children can t go outside to play. . .

Ms. Rejeana DeHart declared that "She was not happy about the flies

or the smell caused from this facility. She stated, the smell starts as early as 5:15

Mr. Ron Holst, a DWP employee, stated that "They ve had to

purchase beekeeper hats in order to perform maintenance on high voltage

equipment, the netting was necessary to keep flies away from workers ' mouths

eyes, and ears. . . . The employees can no longer eat their lunches outdoors.

Ms. Lupe Ortiz "Spoke about the embarrassment of having to rent a

hotel for company because the house was infested with flies.

Mr. Robert D. Curran said in a letter submitted to the City Council

The smell from the current operation is extremely noxious and is causing health

problems to our current employees. We have regular complaints from our

employees , vendors and other visitors regarding the smell. . .


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10. The noxious odors, swarms of flies, and dust and airborne trash

emanating from the subject property have persisted to the present day. Demands

by plaintiffs to control these problems have been ignored by defendants.

11. By reason of the persistent noxious odors emanating from the subject

property, the compo sting operation operated by defendants on the subject property

constitutes a public nuisance within the contemplation of Civil Code Sections

3479 and 3480.

12. By reason of the persistent swarms of flies and other insects

emanating from the subject property, the composting operation operated by

defendants on the subject property constitutes a public nuisance within the

contemplation of Civil Code Sections 3479 and 3480.

13. By reason of the persistent problems of dust and airborne trash and

debris emanating from the subject property, the composting operation operated by

defendants on the subject property constitutes a public nuisance within the

contemplation of Civil Code Sections 3479 and 3480.

14. Unless restrained and enjoined by this Court, defendants will

continue to create and maintain a public nuisance by operating their composting

facility ()n the subject property, thereby causing great and irreparable injury to the

People of the State of California and the City and disturbing and violating the

rights of residents, business owners , and workers in the area. Plaintiffs have no

plain, speedy, or adequate remedy at law and injunctive relief is expressly

authorized by Code of Civil Procedure Section 731 for purposes of abating a

public nuisance.

III

III

III

III

III


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SECOND CAUSE OF ACTION

(By Plaintiff, City of Adelanto, Against Defendants , Nursery

Products , LLC , and Jeffrey P. Meberg, for Preliminary and Permanent

Injunction to Enforce a Settlement Agreement)

15. Plaintiff, City of Adelanto , repeats the allegations contained in

paragraphs 1 through 14 and incorporates them herein by this reference as though

set forth again in full.

16. In November 2003 , defendants , Nursery Products , LLC , and Jeffrey

P. Meberg, filed a federal civil rights lawsuit against the City of Adelanto, seeking

to enjoin the City from interfering with the operation of the composting facility on

the subject property. That lawsuit, entitled Nursery Products, LLC and Jeffrey

Meberg v. City of Adelanto (U. , C.D. Cal. , Docket No. SACV 03- 1622-GL T

(ANx)) terminated when summary judgment was entered in favor of the City of

Adelanto on October 7 2004. Defendants, Nursery Products, LLC, and Jeffrey P.

Meberg, appealed from the judgment to the United States Court of Appeals for the

Ninth Circuit.

17. While the appeal was pending, on or about November 1 2004

plaintiff, City of Adelanto, and defendants, Nursery Products , LLC, and Jeffrey P.

Meberg, entered into a Mutual Release and Settlement Agreement ("Settlement

Agreement"), the key terms of which called for defendants to dismiss the appeal

to cease receiving and processing green waste, bio-solids , and other composting

material at the compo sting facility on the subject property as of July 1 , 2005 , and

to cease composting operations altogether as of September 1 2005. A true and

correct copy of the Settlement Agreement is attached hereto as Exhibit A and

incorporated herein by this reference. Paragraph III A of the Settlement

Agreement provides, in part:

1. Nursery Products and Meberg shall, on or before July 1

2005 , cease and desist from receiving and processing green waste


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bio-solids, or any other organic material for compo sting at the

Compo sting Facility located at 16284 Aster Road in the City of

Adelanto.

Nursery Products and Meberg shall , on or before

September 1 , 2005 , permanently cease and desist from conducting

composting activities at 16284 Aster Road in the City of Adelanto.

18. On June 21 , 2005 , defendant Nursery Products, LLC , through its legal

counsel, provided express written assurance to the City that it would stop

receiving waste and bio-solids at the subject property on July 1 , 2005 and would

otherwise comply with the terms of the Settlement Agreement.

19. In violation of the Settlement Agreement, and in direct contradiction

of their subsequent written assurance, defendants have continued beyond July 1

2005 , to receive and off-load green waste, bio-solids , and other organic material

for composting at the subj ect property.

20. On July 5 2005 , defendant Christopher M. Seney, General Manager

of the Nursery Products compo sting facility, informed Kevin Murphy, the City

Senior Code Enforcement Officer, that defendant Jeffrey P. Meberg had instructed

him to continue receiving and off-loading composting materials until advised

otherwise, a wilful breach of the Settlement Agreement.

21. By continuing to receive shipments of green waste, bio-solids , and

other compo sting material at the compo sting facility after the July 1 2005 , shut-

off date, defendants have breached the Settlement Agreement to the detriment of

the City of Adelanto and its residents.

22. Given defendants ' continued acceptance of shipments of green waste

biosolids , and other organic material at the subject property after the July 1 , 2005

cut-off date, in violation of the Settlement Agreement and in wilful disregard of

subsequent written assurances , plaintiff, City of Adelanto , has no confidence that

defendants will comply with the further provision of the Settlement Agreement


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that they permanently stop compo sting activities altogether on or before

September 1 2005.

23. Plaintiff is informed and believes and thereupon alleges that unless

restrained and enjoined by this Court, defendants will continue to breach the

Settlement Agreement by continuing to receive and process green waste, bio-

solids , and ot er composting materials at their composting facility, thereby

causing great and irreparable injury to the City of Adelanto and its residents and

disturbing and violating the rights of residents, businessmen, and workers in the

area. The injury which wil be sustained by the City and its residents is incapable

of being compensated in money damages , and will require the City to commence

and maintain a multiplicity of separate actions as injuries accrue, for all of which

plaintiff, City of Adelanto, has no plain, speedy or adequate remedy at law.

24. Additionally and alternatively, the City is entitled to a Decree of

Specific Performance, requiring defendants to specifically perform the terms of the

Settlement Agreement by immediately refraining from receiving and processing

green waste, bio-solids, and other composting material at the composting facility

on the subject property.

25. Plaintiff, City of Adelanto, has incurred substantial expense in

commencing and prosecuting this lawsuit to enforce the Settlement Agreement.

Pursuant to paragraph III L of the Settlement Agreement, plaintiff is entitled to

recover from defendants, Nursery Products , LLC , and Jeffrey P. Meberg,

reasonable attorney s fees , costs , and necessary disbursements in addition to any

other relief to which plaintiff may be entitled.

III

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1/1


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THIRD CAUSE OF ACTION

(By Plaintiff, City of Adelanto, Against Defendants , Nursery

Products, LLC , and Jeffrey P. Meberg, for Money Damages for

Breach of a Settlement Agreement)

26. Plaintiff, City of Adelanto, repeats the allegations contained in

paragraphs 1 through 25 and incorporates them herein by this reference as though

set forth again in full.

27. Pursuant to paragraph III E of the Settlement Agreement, defendants

Nursery Products, LLC, and Jeffrey P. Meberg, agreed, promised, and undertook

to construct water lines, fire hydrants , and other required fire suppression facilities

on the subject property.

28. Defendants, Nursery Products, LLC , and Jeffrey P. Meberg, have

breached the Settlement Agreement by failing and refusing to construct water

lines, fire hydrants, and other required fire suppression facilities on the subject

property as required by paragraph III E.

29. Pursuant to paragraph III F of the Settlement Agreement, defendants

Nursery Products , LLC , and Jeffrey P. Meberg, agreed, promised, and undertook

to install certain street lighting improvements on Pansy Road, adjacent to the

subject property.

30. Defendants , Nursery Products , LLC , and Jeffrey P. Meberg, have

breached the Settlement Agreement by failing and refusing to install the street

lighting improvements on Pansy Road as required by paragraph III F.

31. Pursuant to paragraph III G of the Settlement Agreement, defendants

Nursery Products , LLC , and Jeffrey P. Meberg, agreed, promised, and undertook

to install plantings and landscaping improvements around the perimeter of the

subject property.

32. Defendants , Nursery Products , LLC, and Jeffrey P. Meberg, have

breached the Settlement Agreement by failing and refusing to install plantings and


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landscaping improvements around the perimeter of the subject property as

required by paragraph III G.

33. As a result of the breaches of the Settlement Agreement plaintiff, City

of Adelanto, has been damaged in an amount not now known, but which is not less

than $25 000. Plaintiff is entitled to recover said damages from defendants

Nursery Products, LLC , and Jeffrey P. Meberg, and wil seek leave of court to

amend this complaint when the exact amount of said damages is known.

34. Plaintiff, City of Adelanto , has incurred substantial expense in

commencing and prosecuting this lawsuit to enforce the Settlement Agreement.

Pursuant to paragraph III L of the Settlement Agreement, plaintiff is entitled to

recover from defendants , Nursery Products, LLC, and Jeffrey P. Meberg,

reasonable attorney s fees , costs, and necessary disbursements in addition to any

other relief to which plaintiff may be entitled.

WHEREFORE plaintiffs, the People of the State of California and the

City of Adelanto, pray for judgment against the defendants , Nursery Products

LLC , Jeffrey P. Meberg, and Christopher M. Seney, and each of them, as follows:

On the First Cause of Action:

1. That defendants, Nursery Products , LLC, Jeffrey P. Meberg, and

Christopher M. Seney, and each and all of their agents, employees

representatives , officers, directors , and any and all persons acting in concert with

them, be preliminarily and permanently enjoined and restrained from:

(a) receiving and processing green waste, bio-solids, or any other

organic material for composting at the subject property, located at

16284 Aster Road in the City of Adelanto; and

(b) operating a composting facility at the subject property on or

after September 1 2005.

That defendants, and each and all of their agents , employees

representatives, officers , directors, and any and all persons acting in concert with10-


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them, be permanently enjoined and commanded to remove all compo sting

materials from the subject property.

On the Second Cause of Action:

That defendants Nursery Products, LLC and Jeffrey P. Meberg, and

each and all of their agents , employees , representatives, officers , directors, and any

and all persons acting in concert with them, be preliminarily and permanently

enjoined and restrained from receiving and processing green waste, bio-solids, or

any other organic material for composting at the subject property and from

conducting composting activities at the subject property after September 1 , 2005.

That the Court issue a Decree of Specific Performance, ordering

defendants Nursery Products, LLC and Jeffrey P. Meberg to specifically perform

the terms of the Settlement Agreement including, but not limited to, ceasing and

desisting from receiving and processing green waste, bio-solids, or any other

organic material for compo sting at the subject property, and permanently ceasing

composting activities at the subject property on or before September 2005.

On the Third Cause of Action:

That the Court award money damages to plaintiff, City of Adelanto

against the defendants, Nursery Products , LLC , and Jeffrey P. Meberg, in an

amount to be proved at trial , with interest thereon at the legal rate from July 1

2005.

On All Causes of Action:

6. That plaintiffs have and recover from defendants their costs of suit

herein, including reasonable attorney s fees as provided in the Settlement

Agreement; and

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11-Complaint for Preliminary and Permanent Injunction and for Money Damages

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That the Court grant such other and further relief as may seem just in

the circumstances.

DATED: July 8 , 2005 MAGUERITE P. BATTERSBYCITY ATTORNYCITY OF ADELANTO

RICHAS , WATSON & GERSHONA Professional Corporation

MITCHELL E. ABBOTTT. PETER PIERCEGINETTA L. GIOVINCO

BY:

Attorneys for PlaintiffsPeople of the State of Californiaand City of Adelanto

(PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 446, THIS

COMPLAINT IS DEEMED VERIFIED BY OPERATION OF LAW.

12-Complaint for Preliminar and Permanent Injunction and for Money Damages

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SETTLEMENT AGREEMENT

PARTIES

The parties to this agreement are Nursery Products, LLC , a Californialimited liability company ("Nursery Products ), JeffMeberg ("Meberg ), and theCity of Adelanto ("City"

II. RECITALS

The Composting Facility

Nursery Products owns and operates a composting facility ("Compo stingFacility") located at 16284 Aster Road, in the City of Adelanto. This CompostingFacility consists of approximately 40 acres of graded land, a trailer with officesand various pieces of equipment. The Composting Facility receives and processesboth "green waste" (grass clippings , wood chips, and similar materials) and bio-solids (treated sewage). After approximately 60 days of processing at theComposting Facility, the finished material is sold as agrcultural fertilizer.

The Existing Bio-Solids Agreement

Prior to commencing operations of the Composting Facility, NurseryProducts and the City entered into an agreement under which Nursery Productsagreed to accept for processing, process , and dispose of up to five thousand

000) tons per year of Class "B" bio-solids generated at the City' s wastewatertreatment plant, without cost to the City or its residents , for a period of fifty (50)years. Under the agreement the City is responsible for transporting bio-solids tothe Composting Facility, and for paying the costs of transport.

The Application for an Expanded Permit

In 2003 , Nursery Products applied to the California Integrated WasteManagement Board ("CIWMB") for an expanded solid waste facilities permit that

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would allow it to increase the amount of material composed annually by nearly700%. The City expressed concerns to the CIWMB about expanding the capacityof the Composting Facility. The CIWMB has taken no action on the applicationfor the expanded permt.

The Lawsuit

On November 17 , 2003 , Nursery Products and Meberg filed a lawsuitagainst the City iri the United States District Court, Central Distrct of California(Docket number SACV 03- 1622-GLT (ANx)). The lawsuit alleged, in substancethat the City had violated the plaintiffs ' due process rights , had impermissiblyinterfered with Nursery Products ' business , and had caused harm to NurseryProducts ' and Meberg s reputations. Summary judgment in favor of the City wasentered by the Court on October 8 2004.

Attorney s Fees Motion

The City has advised Nursery Products and Meberg of the City' s intentionto bring a motion for an award of its reasonable attorney s fees incurred indefending the lawsuit, pursuant to 42 V. C. 91988. Nursery Products and

Meberg dispute the City' s entitlement to recover its attorney s fees. Additionally,the City on October 21 , 2004, filed an application for an order taxing costs againstNursery Products and Meberg.

Settlement

The parties desire to avoid the risk and expense of further litigation andappeals, and desire fully and finally to resolve any and all claims by the Cityagainst Nursery Products and Meberg for the recovery of attorney s fees and costsand to achieve certainty regarding the future operation of the Composting Facilityand the disposal of sewage sludge generated at the City' s wastewater treatmentplant.

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III. AGREEMENT

The parties agree as follows:

Cessation of Operations at and Relocation of the Compostint:Facility

1. Nursery Products and Meberg shall, on or before July 1 , 2005 , ceaseand desist from receiving and processing green waste, bio-solids, or any otherorganic material for compo sting at the Compo sting Facility located at 16284 AsterRoad in the City of Adelanto.

2. Nursery Products and Meberg shall, on or before September 1 2005pennanently cease and desist from conducting composting activities at 16284Aster Road in the City of Adelanto.

3. Nursery Products and Meberg shall , on or before September 1 2005remove all green waste, bio-solids, or other compo sting material, including allfinished compost material and related equipment, from the Composting Facility

. and shall clean and clear the site provided, however that finished compostmaterial and fertilizer may be retained on the site in connection with the operation

. of a wholesale/retail commercial nursery business, subject to such conditions asmay be imposed by the City.

4. Nursery Products and Meberg shall , use their best efforts to relocatethe Composting Facility to a new site, located within or outside the City limits ofthe City of Adelanto, and to obtain all necessary pennts therefor, on or beforeSeptember 1 2005.

Abandonment of Conditional Use Permit

The parties agree that the Conditional Use Pennt approved by the PlanningCommssion on December 4, 200 I shall be dee ed abandoned and shall have nofurther force and effect as of September 1 , 2005 , or upon such earlier date ascomposting activities cease at the Composting Facility site.

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. '

Amendment to Bio-Solids Agreement

Concurrently with the execution of this Settlement Agreement, the pariesshall execute an Amendment to the existing Bio-Solids Agreement, in the formattached hereto as Exhibit A.

Change of Name or Corporate Entity

The parties anticipate that the new composting facility may be operatedunder a business name different from Nursery Products, or by a corporate entitydifferent from Nursery Products. The parties hereby agree that this SettlementAgreement, and the Amendment to the existing Bio-Solids Agreement, shall applyto and be binding upon any corporate or other legal entity in which NurseryProducts or Meberg has an ownership interest, and which is engaged in thecomposting business in the County of San Bernardino or at a location determnedby the City to be within a reasonable distance for delivery ofbio-solids generatedat the City' s wastewater treatment plant.

Compliance Schedule: Fire Hydrants

1. Nursery Products and .Meberg shall submit to the City, on or beforeJanuary 1 2005 , complete plans for ins llation of all fire hydrants required by theCity' s Fire Department for the Composting Facilty.

2. Nursery Products and Meberg shall, on or before March 1 2005commence constrction of water lines, fire hydrants, and other required firesuppression facilities in accordance with plans approved by the City of Adelanto.

3. Nursery Products and Meberg shall, on or before September I , 2005complete constrction of water lines , fire hydrants , and other required firesuppression facilities in compliance with plans approved by the City of Adelanto.

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Compliance Schedule: Street Lighting

1. Nursery Products and Meberg shall submit to the City, on or beforeJanuary 1 , 2005 , complete plans for installation of all street lighting on PansyRoad as required for the Compo sting Facility.

2. Nursery Products and Meberg shall, on or before July 1 , 2005commence constrction of street lighting on Pansy Road in accordance with plansapproved by the City of Adelanto.

3. Nursery Products and Meberg shall, on or before September 1 2005complete constrction of street lighting on Pansy Road in accordance with plansapproved by the City of Adelanto.

Compliance Schedule: Landscaping

1. Nursery Products and Meberg shall submit to the City, on or beforeJanuary 1 2005; complete plans for landscaping the perimeter of the site, asrequired by the Mitigation Monitoring Plan approved by the Planning Commssionon December 4, 2001.

2. Nursery Products and Meberg shall , on or before July 1 , 2005commence planting and landscaping on the perimeter of the site, in accordancewith plans approved by the City of Adelanto.

. 3. Nursery Products and Meberg shall , on or before September 1 2005complete planting and landscaping on the perimeter of the site, in accordance withplans approved by the City of Adelanto.

Compliance Schedule: Paving of Aster Road

1. As of September 1 , 2005 , or upon such earlier date as compostingactivities cease at the CompostingFacility site, the obligation of Nursery Productsand Meberg to pave the entirety of Aster Road, as required by the Conditional UsePennit approved by the Planning Commssion on December 4, 2001 , shall bedeemed vacated.

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2. Nursery Products and Meberg understand and agree that a conditionof issuance of a Certificate of Occupancy for any future use of the subject propertshall be a requirement that all required dedications and improvements abuttingrights-of-way for the site have been made to the ultimate right-of-way shown inthe General Plan and as determned by the City Engineer, as provided in AdelantoMunicipal Code Section 17. 10.090 et seq. Specifically, Nursery Products andMeberg understand and agree that, as a condition of operating any business orcommercial activity on the subject propert, they will be required to constrct andinstall curbs , gutters , sidewalks, street trees, traffic improvements and drainage onAster Road, and to pave Aster Road to the center line, as provided in AdelantoMunicipal Code Section 17. 10.090(a)(l).

3. As a condition and term of this Settlement Agreement, the City, Nursery Products, and Meberg agree that in lieu of the required improvements , theCity Council shall accept from Nursery Products and Meberg an agreement tomake the specified improvements concurrently upon the development of theparcels of propert located to the east of the subject propert, and identified asAssessor s Parcel Nos. 3128- 121- 3128- 121- , and 3128- 121- , but in anyevent not later than September 1 2010, as provided in Adelanto Municipal CodeSection 17. 10.090(d)(I). The City, Nursery Products, and Meberg agree that theagreement to make the specified improvements shall be accompanied by securitydeposits, a corporate surety bond, or other security as authorized by the CityEngineer, as provided in Adelanto Municipal Code Section 17. 10.090(d)(2) and(3), and further that the security required shall be similar to that required of otherowners of similar propert.

4. Nursery Products and Meberg understand and agree that a conditionof issuance of a Certificate of Occupancy for any future use of the subject propertshall be a requirement that the primary vehicular entrance to the subject propertyshall be from Pansy Road, and that the primary vehicular entrance may not befrom Aster Road unless and until Aster Road is fully paved and improvedbetween Holly Road and Pansy Road, as provided in Adelanto Municipal CodeSection 17. 10.090(a)(I).

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Control of Odors V ectors Trash and Dust

The parties agree that until composting activities at the Compo sting Facilitycease, Nursery Products and Meberg shall use best efforts to eliminate or minimizeoffensive odors, vectors , trash, and dust emanating from the site. Specifically,Nursery Products and Meberg agree to refrain from accepting delivery of greenwaste or of any other materials known to aggravate problems of offensive odorsvectors, trash and dust emanating from the Composting Facility site.

Release of City' s Claims for Attorney s :fees and

In consideration of the agreements and undertakings set forth herein, Cityhereby releases Nursery Products and Meberg of and from any and all liability forpayment of taxable costs and attorney s fees incurred in defending the lawsuitpursuant to 42 U. C. 91988.

Abandonment of Plaintiffs ' Right to Appeal from Judgment

In consideration of the agreements and undertkings set forth hereinNursery Products and Meberg hereby abandon and relinquish any rights they mayhave to appeal from the judgment entered against them on October 8 , 2004.

Default

If any part fails to perform any obligation under this SettlementAgreement, the non-defaulting part may institute legal proceedings seeking adecree of specific performance or injunctive relief toenforce the terms of thisSettlement Agreement. If an action is brought to enforce or interpret provisions ofthis Settlement Agreement, the prevailing part shall be entitled to recoverreasonable attorney s fees, costs, and necessary disbursements in addition to anyother relief to which that party may be entitled.

Notices

Any notice or communication required under this Settlement Agreementshall be in writing, and shall be delivered personally, by facsimile (with original

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forwarded by United States Mail), or by Federal Express or other similar courierpromising overnight delivery. Notice shall be deemed to have been duly givenand received: (a) when delivered, if personally delivered to the recipient; (b) whenfully transmitted to the recipient's facsimile device , if sent by facsimile duringnonnal business hours, provided such device is capable of generating a wrttenconfirmation of such transmission and receipt and provided further that an originalis deposited in first-class mail within two business days thereafter; or (c) on thefirst business day following delivery to an overnight delivery service, provideddelivery is confinned by the delivery service. Any part hereto may at any timeby giving three days ' written notice to the other part, designate a new addressand/or facsimile number for notices and communications pursuant to thisSettlement Agreement.

If to the City

City of AdelantoAttention: City Manager11600 Air ExpresswayP. O. Box 10Adelanto, CA 92301

With a copy to:Marguerite P. Battersby, Esq.City AttorneyRichards, Watson & Gershon355 South Orand Avenue, 40th FloorLos Angeles, California 90071-3101

Tel. (760) 246-2300Fax (760) 246-8421 Tel. (213) 626-8484

Fax (213) 626-0078

If to Nursery Products:

Nursery Products, LLC647 Camino de los MaresSuite 108- 174San Clemente, Calif. 92673

With a copy to:David O. Hagopian, Esq.Holdsworth & Hagopian, LLP650 Town Center Drive, Suite 800Costa Mesa, California 92626

Fax: (949) 366-2117Tel. (714) 384-4120Fax (714) 384-4121

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If to Jeff Meberg

Jeff Meberg647 Camino de los MaresSuite 108- 174San Clemente, Calif. 92673

With a copy to:David G. Hagopian, Esq.Holdsworth & Hagopian, LLP650 Town Center Drive, Suite 800Costa Mesa, California 92626

Fax: (949) 366-2117Tel. (714) 384-4120Fax (714) 384-4121

Warranty of Capacity to Execute Al:reement

Each part represents and warrants that the individuals executing thisSettlement Agreement on each part' s behalf possess full authority to execute thisagreement and to settle and compromise all claims settled and compromised bythis agreement.

Entire Al:reement Amendments and Successors in Interest

This Settlement Agreement contains the entire agreement of the partes andsupersedes any and all prior or contemporaneous understandings, negotiationsrepresentations, promises, and agreements, oral or wrtten, by or between theparties with respect to the matters set forth in this Settlement Agreement. ThisSettlement Agreement shall not be amended, modified, or otherwise changedexcept by a writing duly signed by authorized representatives of Nursery ProductsMeberg, and the City. This Settlement Agreement shall be binding upon and inureto the benefit of the executors, administrators, personal representatives, heirssuccessors, and assigns of each of the parties.

Lel:al Advice

In entering into this Settlement Agreemeht, each part has had theopportunity to consult with and rely upon the advice of the attorneys of their ownchoice. Each part represents and warrants that the terms of this SettlementAgreement have been completely read by and explained to them by their attorneys

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and that those terms are fully understood and voluntarily accepted by them.

Severability

If any portion, provision, or part of this Settlement Agreement is helddetennned, or adjudicated to be invalid, unenforceable, or void for any reasonwhatsoever, each such portion, provision, or part shall be severed from theremaining portions, provisions , or parts of this Settlement Agreement, and shallnot effect the validity or enforceability of such remaining portions, provisions, orparts.

Governin& Law

This Settlement Agreement shall be constred and interpreted in accordancewith the laws of the State of California.

Execution of Counterparts

This Settlement Agreement shall become effective upon execution by allparties. This agreement may be executed in counterparts, each of which shall bedeemed to be an original and all of which shall be deemed to constitute one andthe same document.

(Agreement continues next page)

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IN WITNESS WHEREOF the partes have executed this SettlementAgreement as of November 2004.

CITY OF ADELANTO

ATTEST:

:ftCity Clerk

NURSERY PRODUCTS , LLC

By:Jeff MebergPresident

By:Secreta

JEFF MEBERG

By:Jeff Meberg

(Signatures continue next page

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IN WINESS WBREOF the parties have executed thi SettlementAgrement as of November 1 2004.

A'IST:

City Clerk

'-'

(Signatures contiue next page J

12492\0029\197265.Page 11 of14

CITY OF ADELAN

By:Mayor

NURSERY PRODUCTS, LLC

By:

By:

By:

APPROVED AS TO FORM AND CONTENT:

HOLDSWORTH & HAGOPIAN, LLPDA VrD G. HAGOPIAN

By

~~~

Attorneys for PlaintiffsNursery Products, LLCand Jeff Meberg

MARGUERIE P. BATTERSBYCITY ATTORNEYCITY OF ADELANTO

RICHARDS , WATSON & GERSHONA Professional CorporationMITCHELL E. ABBOTTPATRICKK. BOBKOGINETT A L. GIOVINCO

By lV

Attorneys for Defendan ,City of Adelanto

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EXHIBIT A"

AMNDMENT TO BIO-SOLID WASTE DISPOSAL AGREEMENT

TPS NURSERY PRODUCTS , NURSERY PRODUCTS , LLC , JEFFMEBERG, and the CITY OF ADELANTO hereby amend the "Bio..Solid WasteDisposal Agreement" dated as of June 26, 2001 between TPS NURSERYPRODUCTS and the CITY OF ADELANTO , as follows:

1. All references to TPS Nursery Products in the "Bio-Solid WasteDisposal Agreement" shall be deemed references to Nursery Products , LLC.

2. Paragraph 2 of the "Bio-Solid Waste Disposal Agre ment" shall beamended to read: "Commencing November 1 , 2004 and continuing for fort- ight(48) years thereafter, TPS Nursery Products or Nursery Products , LLC wil acceptfor processing, process and dispose of Class ' B' bio- solids generated by or withinthe City of Adelanto , not to exceed five thousand (5 000) tons per year withoutcost to CITY or its residents.

3. A new Paragraph 17 is added to the "Bio-Solid Waste DisposalAgreement" to read: "It is hereby agreed that this ' Bio-Solid Waste DisposalAgreement' and the ' Amendment to Bio-Solid Waste Disposal Agreement' shallapply to and be binding upon any corporate or other legal entity in which TPSNursery Products, Nursery Products, LLC, or Jeff Meberg has an ownershipinterest, and which is engaged in the composting business in the County of SanBernardino or at a location determned by the City to be within a reasonabledistance for delivery ofbio-solids generated at the City s wastewater tr atmentplant."

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EXHIBIT A"

In all other respects, the "Bio-Solid Waste Disposal Agreement " as.

amended, remains in full force and effect.

Dated: November 1 2004

CITY OF ADELANTOATTEST:

City Clerk

TPS NUSERY PRODUCTS

Jeff Meberg



By:Secretary

Jeff Meberg

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EXHIBIT A"

In all other respects, the "Bio-Solid Waste Disposal Agreement " asamended, remains in full force and effect.

Dated: November 1 , 2004

ATTEST:

J/LCity Clerk

CITY OF ADELANTO

By:Mayor

TPS NUSERY PRODUCTS

Jeff Meberg

NUSERY PRODUCTS , LLC

By:

By:

Jeff MebergPresident

Secretary

12492\0029\797265.

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Jeff Meberg

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EXHIT In all other respects, the "Bio-Solid Waste Disposal Agreement," as

amended rems in full force and effect.


A TrEST:CIT OF ADELANTO

By:Mayor

City Clerk

TPS NUSERY PRODUCTS

NUSERY PRODUCTS, LLC

By:

,J'

By:

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SUPERIOR COUk( OF CALIFORNIA, COUNTY OF SAN tSERNARDINO

PEOPLE OF THE STATE OF CALIFORNIA;CITY OF ADELATO

Case No.

vs.CERTIFICATE OF ASSIGNMENT

NURSERY PRODUCTS, LLC; JEFFREY MEBERGi CHRISTOPHER M. SENEY; etc.

A civil action or proceeding presented for fiing must be accompanied by this certificate. If the ground is the residenceof a part, name and residence shall be stated.

The undersigned declares that the above-entitled matter is filed for proceedings in the VICTORVILLEDistrict of the Superior Court under Rule 404 of this court for the checked reason:

00 General D CollectionNature of Action GroundAdoption Petitioner resides within the district.

Conservator Petitioner or conservatee resides within the district.Contract Performance in the district is expressly provided for.Equity The cause of action arose within the district.

Eminent Domain The propert is located within the district.Family Law Plaintiff, defendant, petitioner or respondent resides within the district.Guardianship Petitioner or ward resides within the district or has property within the district.

Harassment Plaintiff, defendant, petitioner or respondent resides within the district.Mandate The defendant functions wholly within the district.

Name Change The petitioner resides within the district.

Personal Injury The injury occurred within the district.

Personal Propert The propert is located within the district.Probate Decedent resided or resides within the district or had property within the district.Prohibition The defendant functions wholly within the district.Review The defendant functions wholly within the district.

Title to Real Propert The property is located within the district.

Transferred Action The lower court is located within the district.

Unlawful Detainer The propert is located within the district.

Domestic Violence The petitioner, defendant, plaintiff or respondent resides within the district.

Other Injunction Injunction to Abate a Public NuisanceTHIS FILING WOULD NORMALLY FALL WITHIN JURISDICTION OF SUPERIOR COURT.

010011012013014015016017018019w20021The address of the accident, performance, party, detention , place of business, or other factor which qualifies this casefor filing in the above-designated district is:

NURSERY PRODUCTS LLC.(NAME. INDICATE TITLE OR OTHER QUALIFYING FACTOR)

Adelanto(CITY

16284 Aster RoadADDRESS

(STATE)92301

(ZIP CODE)

I declare, under penalty of perjury, that the foregoing is true and correct and that this declaration was executed on

Julv 8. 2005

;;.;

if

"".",. -""'''

MITCHELL E. ABBOTT

, California

13.16503.360 Rev. 10/94 8B-16503

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CM-010ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, mber, and address): FOR COURT USE ONL YMITCHELL E. ABBOTT, ESQ.I-RICHAS, WATSON & GERSHON355 Grand Avenue, 40th FloorLos Angeles, CA 90071-3101

TELEPHONE NO. (213) 626- 8484 FAX NO. (213) 626- 0078ATTORNEY FOR (Name); PlaintiffsSUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO

STREET ADDRESS: 144 5 5 Ci vie DriveMAILING ADDRESS:

CITY AND ZIP CODE: Vietorvi lIe, CA 92392BRANCH NAME: VICTORVILLE DISTRICT

CASE NAME: PEOPLE OF THE STATE OF CAIFORNIA v.NUSERY PRODUCTS LLC al.

CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER:

Unlimited Limited Counter Joinder(Amount (Amount Filed with first appearance by defendant JUDGE:demanded demanded isexceeds $25,000\ $25 000 or less) (Cal. Rules of Court, rule 1811) DEPT.

AII five (5) items below must be comDleted (see instructions on page 2).1. Check one box below for the case type that best describes this case:Auto Tort ContractAuto (22) Breach of contracUwarranty (06)

Uninsured motorist (46) Collections (09)

Other PI/PDIWD (Personallnjury/Propert Insurance coverage (18)DamagelWrongful Death) Tort

Other contract (37)Asbestos (04) ea ropeProduct liabilty (24)

mlnen omalnl nverseMedical malpractice (45) condemnation (14)Other PIIPDIWD (23)

..

(33)rong.u eVictionNon-PIIPDIWD (Other) Tort

Oth (26)er rea propeBusiness tortunfair business practice (07)Civil rights (08) Unlawful DetainerDefamation (13) Commercial (31)

Fraud (16) Residential (32)

Intellectual propert (19) Drugs (38)

Professional negligence (25) Judicial Review

Other non-PI/PDIWD tort (35) Asset forfeiture (05)

Petition re: arbitrtion award (11)EmploymentWrongful termination (36) Writ of mandate (02)

Other employment (15) Other judicial review (39)

2. This case is W is not complex under rule 1800 of the California Rules of Court. If case is complex, mark the factorsrequiring exceptional judicial management:a. Large number of separately represented partiesb. Extensive motion practice raising diffcult or novel

issues that wil be time-consuming to resolvec. Substantial amount of documentary evidence

3. Type of remedies sought (check all that apply):a. DO monetary b. DO nonmonetary; declaratory or injunctive relief c. punitive

4. Number of causes of action (specify): Three5. This case is W is not a class action suit.Date: July 8, 2005

MITCHELL E. ABBOTT

Provisionally Complex Civil Litigation(Cal. Rules of Court, rules 1800-1812)

AntitrusUTrade regulation (03)

Construction defect (10)

Mass tort (40)

Securities litigation (28)

EnvironmentalfToxic tort (30)Insurance coverage claims arising from theabove listed provisionally complex casetypes (41)

Enforcement of JudgmentEnforcement of judgment (20)

Miscellaneous Civil ComplaintRIC6 (27)

IX Other complaint (not specifed above) (42)

Miscellaneous Civil PetitionPartnership and corporate governance (21)Other petition (not specifed above) (43)

d. Large number of witnessese. Coordination with related actions pending in one or more courts

in other counties, states or countries, or in a federal courtf. Substantial post-judgment judicial supervision

NOTICE. Plaintiff must file this cover sheet with the first paper fied in the action or proceeding (except small claims cases or cases fied

under the Probate , Family, or Welfare and Institutions Code). (Cal. Rules of Court , rule 201. ) Failure to fie may result insanctions.

. File this cover sheet in addition to any cover sheet required by local court rule.

. If this case is complex under rule 1800 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on allother partes to the action or proceeding.

. Unless this is a com lex case this cover sheet shall be used for statistical ur oses onl . Page 1 of 2Form Adopted for Mandatory Use

CIVIL CASE COVER SHEET a1 Cal. Rules of Court, rules 201. . 1800-1812;Judicial Council of California Standards of Judicial Administration. !i 19CM.Q10 (Rev. July 1, 2003) 0 Ut, gns'

4h Plus

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MARGUERITE P. BATTERSBY (State Bar No. 115422)CITY ATTORNEYCITY OF ADELANTO

RICHARDS , WATSON & GERSHONA Professional C01)oration

MITCHELL E. ABBOTT (State Bar No. 64990)T. PETER PIERCE (State Bar No. 160408)GINETTA L. GIOVtNCO (State Bar No. 227140)355 South Grand Avenue, 40th FloorLos AngeleS lifornia 90071-3101Teleph(;me: 213) 626-8484FacsImIle: ( 13) 626-0078

Exempt from Filig Fees

Pursuant to Govt. Code 6103

Attorneys for PlaintiffsPeople of the State of California and City of A delan to

SUPERIOR COURT OF THE STATE OF CALIFORNIA

. COUNTY OF SAN BERNARDINO

VICTORVILLE DIVISION

PEOPLE OF THE STATE OFCALIFORNIA; CITY OF ADELANTO

Plaintiffs

Case No. VCVVS038427

NOTICE OF MOTION MOTION FOR PRELIMINARYINJUNCTION; MEMORANDUMOF POINTS AND AUTHORITIESAND DECLARTIONS OFKEVIN MURHY, MEL DAVIS, DANIEL A. SARMIENTO,MARIARITA SANTIAGO, ROBINBRASHAW, BRUCE FOWLER, BRENDA KNOXGRACE RICE, JOHN L. YOUNAND MITCHELL E. ABBOTT IrSUPPORT THEREOF

NURSERY PRODUCTS , LLC;JEFFREY P. MEBERG'CHRISTOPHER M. SENEY; DOES through 20 , inclusive

Defendants.

Hearing:Time:Dept. :

August 8 , 20058:30 a.VI0

fHon. Stanford ReichertJudge of the Superior Court)

Complaint Filed: July 8 , 2005

Notice of Motion and Motion for Preliminary Injunction, Memorandum of Points and Authorities, and Declarations12492\0029\827410.

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TO DEFENDANTS AN TO THEIR ATTORNEYS OF RECORD

HEREIN:

PLEASE TAKE NOTICE that on August 8 2005 at 8:30 a. , or as soon

thereafter as the matter may be heard, in Department VI 0 of the above-entitled

Court, located at 14455 Civic Drive, Victorville, California, plaintiffs, People of

the State of California and City of Adelanto, will and do hereby move the court for

a preliminary injunction against defendants, Nursery Products, LLC, Jeffrey P.

Meberg, and Christopher M. Seney, and each and all of their agents, employees

representatives, officers, directors, and any and all persons acting in concert with

them, enjoining and restraining them, during the pendency of this action, from:

. 1. Receiving and processing green waste, bio-solids , or any other

organic material for compo sting at the real propert located at 16284 Aster Road

in the City of Adelanto ("subject propert"); and

2. Operating a compo sting facility at the subject propert on or after

September 1 , 2005.

This motion is made on the ground that the Nursery Products compo sting

facility constitutes a public nuisance as defined in Civil Code section 3480 in that

persistent noxious odors emanate from the subject propert, persistent swarm

flies and other insects originating on the subject propert plague the surrounding

community, and the subject propert produces dust and airborne trash hazardous

to the surrounding community.

This motion is made on the alternative ground that defendants, by

continuing to receive and process green waste, bio-solids, or any other organic

material for compo sting, are in violation of the explicit terms of a Settlement

Agreement executed by plaintiffs and defendants in November 2004, which

expressly requires inter alia that defendants cease receiving and processing green

waste, bio-solids, or any other organic material for compo sting at the Adelanto

facility no later than July 1 , 2005.

Notice of Motion and Motion for Preliminar Injunction , Memorandum of Points and Authorities, and Declarations

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This motion is based upon this notice and upon the attached memorandum

of points and authorities, supporting exhibits and declarations; upon all the

pleadings, papers, and records on file in this action, upon any matters as to which

the Court may take mandatory or permssive judicial notice , and upon the

argument of counsel and such other and further evidence as the Court may receive

at the time of the hearing on the motion.

WHEREFORE plaintiffs, the People of the State of California and the City

of Adelanto , pray that the motion for preliminary injunction be granted.

DATED: July 8 , 2005 MARGUERITE P. BATTERSBYCITY ATTORNEYCITY OF ADELANTO

RICHAS , WATSON & GERSHONA Professional CorporationMITCHELL E. ABBOTTT. PETER PIERCEGINETTA L. GIOVINCO

By: /1Mitc ell E. A ottAttorneys for PlaintiffsPeople of the State of California andCity of Adelanto

Notice of Motion and Motion for Preliminary Injunction, Memorandum of Points and Authorities, and Declarations

12492\0029\827410.

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II.

III.

IV.

TABLE OF CONTENTS

r AGE(S)INTRODUCTION. . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

PLAINTIFFS AR ENTITLED TO A PRELIMINARYINJUCTION REQUIRIG DEFENDANTS TO STOPRECEIVIG ANDPROCESSING COMPOSTING MATERIALS. " '" 5

A. Plaintiffs Are Likely to Prevail on the Merits of Their Claims . . . . . 5

B. The Balance Of Hardships To The Parties Strongly FavorsGranting The Injunction

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. The Harm To Plaintiffs Would Be Substantial /ftheInjunction Were Denied

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defendants Will Not Suffer Any Appreciable Harm Ifthe Injunction Is Granted

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

PLAINTIFFS AR ALSO ENTITLED TO AN INJUCTIONREQUIRIG DEFENDANTS TO CEASE OPERATIONSALTOGETHER ON OR BEFORE SEPTEMBER 1 , 2005 ............ 12

CONCLUSION. . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . 13


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TABLE OF AUTHORITIES

r AGE(S)CASES:

City and County of San Francisco v. Padilla23 Ca1.App. 3d 388 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Los Angeles v. Silver98 Ca1.App. 3d 745 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Common Cause of California v. Bd. of Supervisors of Los Angeles County,49 Ca1. 3 d 432 (1989) ..................................... 5 , 7 , 10

Corkland v. Boscoe156 Ca1.App.3d 989 (1984) .................................... 10

Dean v. Powell Undertaking Co.55 Ca1.App. 545 (1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

King v. Meese43 Ca1.3d 1217 (1987) ......................................... 5

Markey v. Danville Warehouse Lumber, Inc. 119 Ca1.App.2d I (1953) . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. 7

Nursery Products, LLC v. City of A delan to, C.D. Ca1. Docket No. SACV 03- 1622-GLT (ANx) . . . . . I , 15

Posey v. Leavitt229 Ca1.App.3d 1236 (1991)

...................................

Smith v. Mendonsa108 Ca1.App.2d 540 (1952) ..................................... 9

Varjabedian v. City of Madera20 Ca1.3d 285 (1977) .......................................... 7

Venuto v. Owens-Corning Fiberglass Corp.22 Ca1.App.3d 116 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Weddington Productions, Inc. v. Flick60 Ca1.App.4th 793 (1998)

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

STATUTES:

Civil Code Section 3480 ....................................... 2 , 3 , 5 , 6

Code of Civil Procedure Section 526(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Code of Civil Procedure Section 731 ................................... 7

Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points and Authorities, and Declarations12492\0029\827410. -11-

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MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiffs, the People of the State of California and the City of Adelanto

seek a preliminary injunction prohibiting defendants, Nursery Products, LLC

Jeffrey P. Meberg, and Chrstopher M. Seney (hereinafter collectively referred to

as "defendants ), from receiving and processing treated human sewage sludge

lawn clippings and other so-called "green waste " and other organic materials at

their compo sting facility in the City. As the numerous attached declarations from

area residents attest, the compo sting process generates a foul stench permeating

the community, and generates thousands of flies plaguing homes, schools, and

automobiles. Only an injunction can remedy the daily harm inflicted by the

compo sting facility upon the surounding residents and businesses.

This is not the first time the parties have gone to court. An earlier federal

court civil rights action resulted in a summary judgment in favor of the City of

Adelanto. (Nursery Products, LLC v. City of Adelanto , C.D. Cal.

Docket No. SACV 03- 1622-GLT (ANx)). A subsequent appeal by Nursery

Products to the Ninth Circuit was abandoned when the parties entered into a

Settlement Agreement, a tre and correct copy of which is attached here as Exhibit

. (Declaration of Mitchell E. Abbott at 2).

The Settlement Agreement sets forth the background facts relating to the

disputes between the City and Nursery Products , and the City wil refer to it in this

introductory statement of facts. Nursery Products, LLC owns and operates a

compo sting facility located at 16284 Aster Road in the City of Adelanto. (Ex. A

p. 1 I1.A). The facility consists of approximately 40 acres of flat, graded land, a

trailer with offices , and various pieces of earth-moving equipment. (Ex. A, p. 1

II.A). The facility receives and processes both "green-waste" (grass clippings


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wood chips, and similar materials) and "bio-solids" (treated domestic sewage

sludge). (Ex. A, p. 1 , I1.A). The materials are mixed and treated with a chemical

enze, and then piled in 10-foot high windrows in the open air. After

approximately 60 days of processing at the facility, the finished compost product

is sold as agrcultural fertilizer. (Ex. A, p. 1 , I1.A).

Compo sting operations on the subject propert began in early 2003. Later

that same year, Nursery Products applied to the California Integrated Waste

Management Board ("CIWMB") for an expanded solid waste facilities permt that

would allow it to increase by nearly 700 percent the amount of material composted

annually. (Ex. A, pp. 1- , ILC). The City expressed concerns to the CIWMB

about expanding the capacity of the facility, and about the impact of an expanded

operation on the community. (Ex. A, pp. 1- , , I1.C). The City' s exercise of its

rights in expressing its concerns to CIWMB trggered the filing of the federal

court civil rights action by Nursery Products, described above.

The Settlement Agreement contains the following two provisions relating to

the shut-down of the Nursery Products facility:

1. Nursery Products and Meberg shall, on or before July I

2005 , cease and desist from receiving and processing green waste

bio-solids , or any other organic material for compo sting at the

Composting Facility located at 16284 Aster Road in the City of

Adelanto.

2. Nursery Products and Meberg shall, on or before

September 1 2005 , permanently cease and desist from conducting

compo sting activities at 16284 Aster Road in the City of Adelanto.

(Ex. A, p. 3

, "

II1.A. l & 2).

As appears more particularly from the attached declaration of Kevin

Murphy, Code Enforcement Officer for the City of Adelanto, trcks have been

observed delivering (and dumping) sewage sludge and other organic material at


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the Nursery Products facility after the July 1 2005 cut-off date. Indeed, on July 5

2005 , defendant Chrstopher M. Seney, general manager of the composting

operation, told the City' s Code Enforcement Officer, Kevin Murhy, that Nursery

Products planned to continue to engage in business as usual and did not plan to

stop receiving shipments as required by the Settlement Agreement. (Declaration

of Kevin Murphy, 8). Significantly, just two weeks ago, Nursery Products

represented to the City in wrting on June 21 2005 that it would stop receiving

waste and bio-solids on July 2005. (Ex. B; Declaration of Mitchell E. Abbott at

3).

Given defendants ' continued acceptance of shipments of sewage sludge , in

direct violation of the express terms of the Settlement Agreement and in the face

of wrtten assurance to the contrary, there is no reason to believe that defendants

will voluntarly comply with any of the terms of the Settlement Agreement. The

City thus seeks a preliminary injunction requiring defendants to cease accepting

shipments ofbiosolids and other organic materials immediately, and to cease all

composting activities and operations as of September 1 2005.

As discussed more fully below, the courts evaluate two factors in deciding

whether to issue a preliminary injunction: (1) the likelihood that the plaintiffs

ultimately will prevail on the merits of their complaint, and (2) the comparative

consequences to the parties of issuing or not issuing the injunction.

The numerous declarations from local residents attached hereto demonstrate

incontrovertably that the Nursery Products composting facility constitutes a public

nuisance, and there is thus a strong likelihood that the City will prevail on the

merits of its public nuisance claim. The declarations show that the compo sting

facility is a public nuisance as defined in Civil Code section 3480. The pervasive

and noxious odor emanating from the facility is the paradigmatic public nuisance.

The thousands of flies attracted by the composting operations and then inflicted on

the surrounding community are a separate and aggravating aspect of the nuisance.

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Turing to the breach of contract claim, the declaration of Kevin Murphy

demonstrates conclusively that defendants Nursery Products and Meberg have

breached the terms of the Settlement Agreement by continuing to accept shipments

ofbio-solids and other organic waste after the July 1 2005 shut-off date.

The comparative consequences to the parties of granting or denying the

injunction - some courts refer to this factor as the "balancing of harms" - weighs

heavily in favor of granting the injunction. The har to the City of not granting

the injunction is the continued stench and attendant flies that are being inflicted on

the surrounding community. Bluntly stated, the foul odors and swarms of flies

originating at the compo sting facility are directly and materially interfering with

the lives of City residents. People cannot enjoy barbecues with their families or

other outdoor activities at their homes. Children cannot participate in athletic

activities at public parks when the wind is blowing the wrong way. Thousands

flies congregate on the screens and walls of homes and schools - people must race

through doors to keep the flies from coming inside. Local elementary school

children have complained of nausea, vomiting, eye irrtation, and difficulty

breathing when odors from the composting facility are particularly intense.

Furthermore, if a preliminary injunction is not granted, the City (and its residents)

will completely lose the benefit of the bargain it strck in the Settlement

Agreement as defendants continue their composting operation with impunity.

In sharp contrast, defendants will suffer no harm if the court grants the

injunction. An injunction would require defendants to do nothing more than what

they have already agreed to do - cease receiving and processing compo sting

materials forthwith and then stop compo sting operations altogether on September

2005.

For all of these reasons, the Court should issue a preliminary injunction as

requested.

III

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II.

PLAINTIFFS ARE ENTITLED TO A PRELIMINARY

INJUCTION REQUIRING DEFENDANTS TO STOP

RECEIVING AND PROCESSING COMPOSTING

MATERIALS.

The California Supreme Court has articulated the tral court's task in

evaluating a request for prelimiary injunction as follows:

In deciding whether to issue a preliminary injunction, a trial courmust evaluate two interrelated factors: (i) the likelihood that the partseeking the injunction will ultimately prevail on the merits of his

claim, and (ii) the balance of harm presented, i. , the comparative

consequences of the issuance and nonissuance of the injunction.

Common Cause of California v. Bd. of Supervisors of Los Angeles County, 49

Ca1.3d 432 441-442 (1989).

The Court evaluates the two factors on a sliding scale, such that "if the parseeking the injunction can make a sufficiently strong showing of likelihood of

success on the merits , the tral court has discretion to issue the injunction

notwithstanding that part's inability to show that the balance of harms tips in his

favor." 49 Ca1.3d 432 447. See also King v. Meese, 43 Ca1.3d 1217 , 1227 (1987)

the more likely it is that plaintiffs will ultimately prevail, the less severe must be

the harm that they allege wil occur if the injunction does not issue

Plaintiffs Are Likely to Prevail on the Merits of Their Claims

1. The Evidence Demonstrates That The Continued Processing Of

Materials For Composting Constitutes A Public Nuisance.

Civil Code Section 3480 defines a public nuisance as follows:


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A public nuisance is one which affects at the same time an entire

community or neighborhood, or any considerable number of persons

although the extent of the annoyance or damage inflicted upon

individuals may be unequal."

Civil Code 9 3480.

The compo sting facility at issue here has had a severe and negative impact

upon a large number of people who live or work in the City of Adelanto. There is

no question that a foul stench emanates from the compo sting facility. (See

declarations of Kevin Murhy ( 3); Melva Davis ( 8); Mararta Santiago ( 5);

and John L. Young ( 3)). The stench permeates local schoolyards, many

residences, businesses, and recreational facilities to the extent it becomes

intolerable to stay outdoors (See declarations of Melva Davis ( 8); Daniel A.

Sarmento ( , 3 , 5); Mariarita Santiago ( , 11); Robin Bradshaw ( , 3);

Bruce W. Fowler ( 3); Brenda Knox ( 2); Grace Rice ( 3); and John L.

Young ( , 5)). At times, the stench is so strong that it causes illness , including

vomiting. (See declarations of Melva Davis ( , 8); Daniel A. Sarmento (

3); Mariarita Santiago ( 10); Brenda Knox ( 2); and Grace Rice ( 3)).

The compo sting facility has also generated or attracted thousands of flies

that have become a nuisance to children at school and on school buses , to

residents in their homes , and to employees at their places of business. (See

declarations of Melva Davis ( 3,4); Daniel A. Sarmento ( 4); Mariarita

Santiago ( 9); Bruce W. Fowler ( 2); Brenda Knox ( 2); Grace Rice ( 4);

and John L. Young ( 4)).

The widespread foul stench and the accompanying flies are paradigmatic

public nuisances. As shown by the numerous attached declarations, the stench and

flies interfere with the public health, comfort and convenience. See Venuto v.

Owens-Corning Fiberglass Corp. 22 Cal.App.3d 116, 123 (1971) (a "' public

nuisance ' comprehends an act. . . which interferes with the interests of the


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community or the comfort and convenience of the general public and includes

interference with the public health, comfort and convenience. ) Conditions

similar to the stench and flies here historically haye been declared by cours to

constitute public nuisances. See Varjabedian v. City of Madera 20 Ca1.3d 285

289-91 (1977) (neighboring homeowners allowed to sue for public nuisance

caused by foul odors emanating from sewage treatment plant); Markey v. Danville

Warehouse Lumber, Inc. 119 Ca1.App.2d 1 (1953) (cement mixing plant that

produced excessive dirt and grt, and generated loud noises, was public nuisance);

Dean v. Powell Undertaking Co. 55 Ca1.App. 545 (1921) (funeral parlors

generating foul and noxious odors constituted public nuisance).

Public nuisances may be abated pursuant to legal action brought by a city

attorney in the name of the people of the State of California under Code of Civil

Procedure Section 731. Well-settled authority establishes that an injunction is an

appropriate remedy to abate a public nuisance. See, e. , City and County of San

Francisco v. Padilla 23 Ca1.App.3d 388 , 401 (1972) (public nuisance "may be

enjoined by an action for injunction

);

City of Los Angeles v. Silver, 98

Ca1.App.3d 745 , 750 (1979) ("public nuisance (is) subject to abatement by

injunction

Based upon the evidence contained in the declarations before the cour

plaintiffs respectfully submit that the compo sting facility is a public nuisance and

there is a strong likelihood that plaintiffs will prevail on their first cause of action

for unlawful maintenance of a public nuisance. The court may issue a preliminary

injunction on this basis alone. See Common Cause of California v. Rd. of

Supervisors of Los Angeles County, 49 Ca1.3d 432 447 (1989) ("if the partseeking the injunction can make a sufficiently strong showing of likelihood of

success on the merits, the tral court has discretion to issue the injunction

notwithstanding that part' s inability to show that the balance of harms tips in his

favor

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2. The Evidence Clearly Shows that Defendants Nursery Products

and Jeff Meberg Have Breached the Settlement Agreement They

Entered Into with the City.

As noted in the Introduction, the Settlement Agreement executed by the

City and defendants Nursery Products and Jeff Meberg provides: ' 'Nursery

Products and Meberg shall, on or before July 1 2005 , cease and desist from

receiving and processing green waste, bio-solids, or any other organic material for

compo sting at the Composting Facility located at 16284 Aster Road in the City of

Adelanto." (Ex. A, p. 1 II1.A. l).

The attached declaration of Kevin Murhy, Senior Code Enforcement

Officer for the City of Adelanto, establishes that Nursery Products and Meberg

have consistently breached the Settlement Agreement by continuing to receive

materials for compo sting, and by continuing to process those materials, all after

July 1 , 2005 (Declaration of Kevin Murhy at 8).

This Court properly may issue a preliminary injunction to prevent further

breach of the Settlement Agreement. Code of Civil Procedure Section 526(a)(3)

provides that an injunction may be granted when "it appears, durng the litigation

that a part to the action is doing. . . some act in violation of the rights of another

part to the action respecting the subject of the action, and tending to render the

judgment ineffectual." (Code of Civil Procedure 9 526(a)(3)). The Declaration of

Kevin Murphy establishes that Nursery Products received shipments of sewage

sludge and other materials and allowed them to be dumped at the composting

facility on July 5 , 2005 after the July 1 2005 cut-off date. An injunction properly

may issue here.

Furthermore , the Settlement Agreement itself expressly provides that if a

part fails to perform any obligation under the agreement, the non-defaulting partmay file suit seeking injunctive relief to enforce the terms of this Settlement

Agreement. (Ex. A, p. 7 III.L) (emphasis added).

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In Smith v. Mendonsa 108 Cal.App.2d 540 (1952), plaintiff and defendants

owned adjacent real propert. They entered into a wrtten agreement in which

defendants promised not to maintain on their propert any trees exceeding 15 feet

in height. Defendants breached the agreement and the tral court issued an

injunction to enforce it. On appeal, defendants attacked the injunction, arguing

that the balance of hardships tipped in favor of denying injunctive relief (108

Cal.App.2d 540 543.) The Court of Appeal rejected this argument and affirmed

the injunction. The appellate court expressly held that injunctive relief is

appropriate to prevent the breach of a contract:

We think that the trial court acted within its discretion in granting

injunctive relief. These factors impel to that conclusion: The contract

itself is very clear; the promise made is definite; the purpose is

declared to be the prevention of the very damage which ensued when

that promise was broken. . . It is not the business of cours , either of

law or of equity, to remake contracts fairly entered into by persons

who are capable of contracting. On the contrary, it is the duty of

courts to encourage the keeping of agreements so made and to give

adequate remedy for the breach thereof when it occurs. This is

particularly tre where the breach is deliberate and the wrong wilful."

Smith v. Mendonsa 108 Cal.App.2d 540 , 544 (1952).

Defendants Nursery Products and Jeff Meberg promised to stop receiving

and processing bio-solids and other organic matter for compo sting on or before

July 1 , 2005. Defendants have failed to keep their promise, and they continue to

violate the terms of the Settlement Agreement (See Declaration of Kevin Murphy

at 8). Indeed, the General Manager of the Nursery Products facility, Chrstopher

Seney, has flatly proclaimed his and his company s intention to continue receiving

bio-solids and processing them indefinitely. (See Declaration of Kevin Murphy at

9). This Court should issue a preliminary injunction that immediately prohibits


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defendants from receiving and processing fuher shipments ofbio-solids and

other organic material.

Defendants may seek to resist a preliminar injunction by relying on Code

of Civil Procedure Section 526(b )(5), which provides that an injunction cannot be

granted to "prevent the breach of a contract the performance of which would not

be specifically enforced. There is no reason in law or logic why the Settlement

Agreement here "would not be specifically enforced." Settlement agreements are

routinely enforced by the courts. See, e.

g.,

Weddington Productions, Inc.

Flick 60 Cal.App.4th 793 (1998); Corkland v. Boscoe 156 Cal.App.3d 989 , 992

(1984). Ths is particularly so here, where the specific performance sought is

simply a prohibition on carrng on a certain business activity. The limitation on

injunctive relief in Section 526(b)(5) simply does not apply here.

Plaintiffs respectfully submit that defendants ' breach of the Settlement

Agreement provides a separate and independent ground for this Court to issue a

preliminary injunction requiring defendants Nursery Products and Meberg

forthwith to cease receiving and processing shipments ofbio-solids and other

organic material for compo sting at the Adelanto site.

The Balance Of Hardships To The Parties Strongly Favors

Granting The Injunction.

As noted above, the second part of the test for whether to issue a

preliminary injunction is to balance the hardship to the plaintiff of not granting the

requested injunction against the hardship to the defendants of granting the

injunction. Common Cause of California v. Bd. of Supervisors of Los Angeles

County, 49 Cal.3d 432 , 441-42 (1989).

III

III

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The Harm To Plaintif Would Be Substantial If the Injunction Were

Denied.

The multiple attached declarations of people who live and work in the City

of Adelanto demonstrate the substantial hardship that the public will continue to

endure if defendants Nursery Products and Meberg are not enjoined from

continuing to receive and process compo sting materials. Defendants ' compo sting

operation has caused physical illness in children and adults alike and has seriously

interfered with the normal daily activities of many Adelanto residents, and has

substantially impaired the use and enjoyment of their propert.

Defendants Will Not Suffer Any Appreciable Harm If the Injunction Is

Granted.

The hardship to defendant by the granting of the injunction must be greatly

disproportionate to the hardship caused plaintiff. . . and this fact must clearly

appear in the evidence and must be proved by the defendant." Posey v. Leavitt

229 Cal.App.3d 1236, 1248 (1991).

Given the severe hardship plaintiffs will endure if injunctive relief is denied

defendants cannot meet their burden of showing that they will endure far greater

hardship if an injunction iss es. In fact, defendants will not suffer any appreciable

hardship if a preliminary injunction issues: the requested injunction would

prohibit defendants from continuing to engage in activities that they were already

legally required to discontinue under the Settlement Agreement. A part cannot

claim hardship in being required to refrain from taking actions in which the parthas no legal right to engage in the first place.

Here, defendants here had no right to continue receiving and processing

composting materials beyond July 1 2005. Because the preliminary injunction


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sought here will do nothing more than prohibit defendants from taking actions

which they have already agreed in wrting not to take, defendants certainly can

claim no harm if the injunction is granted.

In summary, plaintiffs will suffer far greater harm if a preliminary

injunction does not issue than defendants will suffer if the court issues a

preliminary injunction. That relative har, together with plaintiffs ' strong

likelihood of succeeding on the merits on both their first and second causes of

action, presents a compelling case for this Court to grant a preliminar injunction

requiring defendants immediately to stop receiving and processing compo sting

materials.

III.

PLAINTIFFS AR ALSO ENTITLED TO AN INJUCTIONREQilRING DEFENDANTS TO CEASE OPERATIONS

ALTOGETHER ON OR BEFORE SEPTEMBER 1, 2005.

The requirements of the Settlement Agreement are plain and unambiguous.

re has been no suggestion that defendants did not understand their obligations.

Indeed, just two weeks ago, Nursery Products stated, in wrting, that it "intends to

stop receiving waste and bio-solids at the Adelanto site on July 1 2005 and will

stop compo sting materials there on September 1 2005." (Exhibit B).

The evidence, however, shows that defendants do not keep their promises.

Accordingly, neither plaintiffs nor this Court should have any confidence

that defendants will voluntarily cease all of their compo sting operations on or

before September 1 , 2005. The preliminary injunction should also require

defendants to comply with the term of the Settlement Agreement mandating that

they permanently cease and desist from conducting compo sting activities at their

Adelanto facility on or before September 1 2005.


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IV.

CONCLUSION

For all of the foregoing reasons, the Court-should issue a preliminary

injunction enjoining and restraining defendants, during the pendency of this

action, from:

Receiving and processing green waste, bio-solids, or any other

organic material for compo sting at the real propert located at 16284 Aster Road

in the City of Adelanto; and

2. Operating a compo sting facility at the subject propert on or after

September 1 , 2005.

DATED: July 8 , 2005 Respectfully submitted

MARGUERITE P. BATTERSBYCITY ATTORNYCITY OF ADELANTO

RICHAS , WATSON & GERSHONA Professional C01)orationMITCHELL E. ABBOTTT. PETER PIERCEGINETTA L. GIOVINCO

By: Itc e ottAttorneys for PlaintiffsPeople of the State of Californiaand City of Adelanto


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DECLARTION OF KEVIN MURPHY

Kevin Murhy, hereby declare:

1. I am and all times material hereto have been the duly-appointed

Senior Code Enforcement Officer for the City of Adelanto, plaintiff in the above-

entitled action. I have personal knowledge of the matters and facts set forth herein

and, if called as a witness, could and would testify competently thereto.

2. As Senior Code Enforcement Officer for the City of Adelanto, my job

responsibilities include monitoring and investigating complaints of nuisance and

violations of the Adelanto Municipal Code, interfacing with the propert owners

or others responsible for the problems, issuing notices of violations, citations and

if necessary, overseeing the filing of legal proceedings in the San Bernardino

County Superior Court to secure compliance.

3. I fIrst inspected the Nursery Products composting facility sometime

late in 2002 or early in 2003 , in response to complaints I had received concerning

odors and flies emanating from the facility. Since that time, I have received

numerous complaints from residents and workers in the City of Adelanto

concerning odors, flies, dust, and trash emanating from the Nursery Products

facility. I have visited the Nursery Products facility in response to these

complaints on more than 100 occasions, and on many of those occasions

experienced a foul odor emanating from the facility.

On November 5 2003 , the City Council of the City of Adelanto

conducted a special meeting and heard testimony from a number of residents and

workers in the City concerning problems with the Nursery Products compo sting

facility. At the conclusion of that lengthy special meeting, the City Council

directed City staff to initiate code enforcement and nuisance abatement

proceedings against Nursery Products.

5. Shortly after this special City Council meeting, Nursery Products

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filed a civil rights action against the City of Adelanto in federal cour. Nursery

Products, LLC v. City of Adelanto , C.D. Cal. Docket No. SACV 03-

1622-GL T (ANx). After extensive depositions, document inspections, and other

pre-tral activity, the City moved for summary judgment on August 31 , 2005; the

motion was granted by District Judge Gary L. Taylor on September 21 2005 , and

judgment was entered by the court on October 8 2005.

6. Nursery Products filed a notice of appeal from this judgment. While

the appeal was pending before the Ninth Circuit Cour of Appeals, the City and

Nursery Products entered into a Settlement Agreement which basically provided

that Nursery Products would cease compo sting operations at the subject propert.A tre and correct copy of the signed Settlement Agreement is attached hereto as

Exhibit A and incorporated herein by this reference.

7. On June 21 2005 , the attorney for Nursery Products, David G.

Hagopian, Esq. , assured the City Attorney, in wrting, that Nursery Products

would abide by the Settlement Agreement and would stop receiving waste and

bio-solids at the Adelanto facility on July 2005. A tre and correct copy of Mr.

Hagopian s June 21 , 2005 , letter is attached hereto as Exhibit B and incorporated

herein by this reference.

8. I visited the Nursery Products site on Tuesday, July 5 2005 and

observed operations from the public right-of-way adjacent to the facility.

Notwithstanding the Settlement Agreement and Mr. Hagopian s assurances, at

11:16 a. , I observed three semi-trcks and trailers hauling sewage sludge drve

onto the Nursery Products propert and unloading their cargo. After the sludge

was dumped, the semi-trcks and trailers drove out of the facility. I then observed

a loader "mixing" the sludge with other material. I have observed this process

many times in th past.

9. After observing the trcks make their deliveries on July 5 , I went onto

the Nursery Products site and spoke to defendant, Chrs Seney, known to me to be

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the general manager of the composting facility. I asked Mr. Seney if Nursery

Products was still accepting shipments ofbio-solids. Mr. Seney told me

, "

we are -

operating like we always have, no chage." Referrg to Nursery Products

President, Jeff Meberg, Mr. Seney then said, "Unless Jeff tells me otherwse

Nursery Products will continue acceptig shipments ofbio-solids.

10. Based upon my observations on July 5 2005 , there has been no

change in the operation of the Nursery Products compostig facility.

I declare under penalty of perjur under the laws of the United States of

America that the foregoing is tre and correct.

Executed on July 2005.

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DECLARTION OF MELVA DAVIS

, Melva Davis, hereby declare:

1. I was the Principal of Bradach Elementary School, located at 15550

Bellflower Street in the City of Adelanto, from 2001 until June 30, 2004. The

Bradach School had an enrollment of approximately 950 students from pre-school

through the eighth grade. From July 1 , 2004 until the present I have been the

Principal of Adelanto School , with an enrollment of approximately 600 students

from kindergarten through the fifth grade. I have personal knowledge of the

matters and facts set forth herein and, if called as a witness, could and would

testify competently thereto.

2. The Bradach School is located about two miles southeast of the

Nursery Products compo sting facility at 16284 Aster Road.

3. In about the Spring of2003 , we began to notice on Monday mornings

after returning to Bradach School from the weekend, a black mass of thousands of

flies covering the exterior doors and windows of the school. The custodial staffwould tr to get rid of the flies by using spray bottles of Windex. We could not

use chemical insect repellents because of the children.

4. The massive influx of flies required us to leave all doors closed and

food covered in the cafeteria so that the food would remain edible for the children.

5. Also in about the Spring of2003 , I began to notice a foul stench

wafting over the Bradach School. The stench was present on a daily basis until I

left the school on June 30 , 2004, although some days were worse than others. On

some days , the stench was so foul that students playing outside complained of

stomach aches and headaches , and experienced vomiting. On those days, the

children were not able to do any kind of exercise outdoors.

6. School staff members also complained of experiencing the same

symptoms while supervising the children during outdoor recess.

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7. After I left Bradach School and become Prncipal at Adelanto School

on July 1, 2004, I continued to notice the stench on a daily basis while at the

school. The stench persists until this day. The Adelanto School is approximately

one and a quarer to one and one-halfmiles from the Nursery Products facility.

8. I came to the conclusion that the foul odor was comig from the

Nursery Products facilty after I took a car ride in the Spring of2003 and

discovered tht the odor became more and more intense the closer I got to the

Nursery Products facility. The odor was so strong when the car approached the

facility that I vomited.

I declare under penalty of perjur under the laws of the State of California

that the foregoing is tre and correct.

Executed on June 30, 2005.

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DECLARTION OF DANIEL A. SARMIENTO

, Daniel A. Sarmento, hereby declare:

1. I am and at all times since 1993 have been a resident of the City of

Adelanto. My home address is 17853 Stevens Street. I have personal knowledge

of the matters and facts set forth herein and, if called as a witness, could and

would testify competently thereto.

2. My home is located approximately two miles from the Nursery

Products compo sting facility at 16284 Aster Road. Since the Nursery Products

facility began operating in 2003 , my family and I have experienced extremely bad

odors coming from the compo sting facility. Sometimes the foul odors start

early as 3:00 a.m. or 4:00 a.m. in the morning, and they are so bad that we must

shut the windows in our home. The odors increase again in the late afternoon and

evenings, and make it impossible to enjoy barbecues or other outside activities at

our home.

My son, Daniel, is 12 years of age and participates in the Azteca

Soccer Club, a youth soccer organization that practices at Richardson Park, near

Adelanto City Hall. Since the composting facility began operations, my son has

complained of burning eyes, difficulty breathing, and nausea from the odors in the

air. Both my wife, Laura, and my son, Daniel , have experienced significantly

increased problems with allergies which we attrbute to the odors and air pollution

caused by Nursery Products.

4. The Nursery Products facility has also caused a huge amount of flies

which make it very unpleasant to go outside. The flies have been so thick that the

screen doors at our home are ' jet black." At one point, the flies and odors coming

from the compo sting facility seemed to have reduced somewhat, but for the past

month or so, these problems have been as bad as they ever were.

The Nursery Products facility has been a problem for our family since


12492\0029\827410. 19-

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it opened. The odors and fles coming trom the composting facility are just

intolerable. My daughte, Ileana, 14 years of age, does not want to go outside

our home because of "the smell" from Nursery Products.

I declare under penalty of perjury under the laws of the State of Californa



la,ento

Notice of Motion and Motion for Preliminar injunction. Memoradwn of Points and Authorities. and Declarons12492\009\827410.4 - ?o-

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DECLARTION OF MAARTA SANTIAGO

, Mariarita Santiago, hereby declare:


Adelanto. My home address is 15324 Kearny Drive. I have personal knowledge

of the matters and facts set forth herein and, if called as a witness , could and

would testify competently thereto.

2. My home is located approximately three miles from the Nursery

Products compo sting facility at 16284 Aster Road. I live with my husband and

three children.

3. Beginning in mid-2003 , when I was in my yard, I began to experience

a foul odor that resembled the smell of sewage. The odor was so pervasive that

my family and I could no longer sit on the bench of our front porch, which we had

done most evenings.

4. I have smelled the foul odor in my yard three or four days a week

since it began in mid-2003. My family and I like to leave the windows open, but

when the odor is present, we must close the windows and run the air conditioning.

Before the odor started, we would leave the windows open at night so the house

would cool.

5. My bank is very close to the location of the Nursery Products facility

in Adelanto. When I go to the bank and exit my car, the stench is very strong,

even stronger than that I experience at my house.

6. I am a school bus drver employed by the City of Adelanto. During

my daily runs, I notice the foul odor when I am downwind of the Nursery Products

facilty no matter where I am located in relation to the facility.

7. Also beginning in about mid-2003 , I noticed huge swarm of flies in

my yard. The flies would rest on my plants and flowers immediately adjacent to

my front door and my family and I would have to run into the house after opening

Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points and Authorities, and Declarations12492\0029\827410. 21-

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the door so the flies would not follow us inside. Unforttely, we were not able

to prevent all of the flies from entering, and many flies came into the house and we

spent hour chasing them down and killing them. We would tr to trap the flies

between the windows and window screens so that we could minimize the use of

insect spray withn the house.

8. Often, during my bus runs to and from schools, many flies would

enter the bus though the windows and some of the children were bothered by the

presence of the flies.

9. After the flies began swaning at our house, 1 noticed they would

land on the food we left outside for our dog. Our dog stopped eating the food and

became very thin and sick. In addition, the flies would bite our dog. He died in

October 2003.

10. When the odor is particularly strong, my sinuses flare up making it

diffcult to breathe through my nose. At times, the flare..up persists for two

thee days. Also, the strong odor has given me severe headaches that I never

experienced before the composting facility began operating. Sometimes, the

headaches last for an entire day.

II. Overall, the stench has forced us to stay at home more when we used

to paricipate in more recreational activities outside the house.

I declare under penalty of perjury under the laws of the State of California



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Notice of Motion and Motion for Prelimin8I Injunction. Memoradum of Points and Authorities, and Declartions

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DECLARTION OF ROBIN BRASHAW

Robin Bradshaw, hereby declare:

1. I am and at all times since November 2000 , have been Safety Director

for CABO Yachts, Inc. , a manufactuer of recreational fiberglass yachts located at

9780 Rancho Road in the City of Adelanto. I have personal knowledge of the

matters and facts set forth herein and, if called as a witness, could and would


CABO Yachts, Inc. , conducts its manufacturing operations in six

large buildings on a 10-acre campus, which is located approximately 1.5 miles

from the Nursery Products composting facility at 16284 Aster Road. My job as

Safety Director includes compliance with air and water permts, worker safety

programs and procedures, and overall responsibility for facility maintenance. The

Nursery Products composting facility has been a public nuisance due to extremely

strong and unpleasant odors. The odors seem to be strongest in the early mornings

and late afternoons , and on occasions when the wind blows from the southeast.

CABO Yachts , Inc. , employs 530 people at the Adelanto plant. I

have had many complaints from our workers regarding the odors from Nursery

Products , which are sometimes extremely strong. I have had a number of

conversations with the management of CABO Yachts, Inc. , regarding the nuisance

problems caused by Nursery Products ' composting operation. In light of my

experience and that of my company, it appears to me that because of the odors

associated with the operation, and because of the close proximity of large numbers

of workers and residents, this is a very unsuitable location for a compo sting

facility.

III

III

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Notice of Motion and Motion for Preliminar Injunction , Memorandum of Points and Authorities, and Declarations12492\0029\827410. 23-

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ARATION 0 BRUCE W. FOWLER

I, Bruce W. Fowler, hereby declare:

1. At all times since 1988, my wife Erica and I have resided at 11255

Cactus Road, Adelanto, California. 1 have personal knowledge of the matters and

facts set fort herein and, if called as a witness, could and would testify

competently thereto.

2. My home is located approximately 1.5 miles from the Nursery

Products composting facilty at 16284 Aster Road. Since Nursery Products began

operating in 2003, we have experienced an extreme infestation of flies at our

home. From the time the sun rises, the swanns oftlies are so intense that my wife

and I canot enjoy the out-of-doors at our home. On one occasion, after spraying

with a pesticide, my wife and I counted more than 1,000 dead flies on the floor of

our porch. We have lived in our home for 17 years, and we never experienced a

problem with flies until the composting operation began.

3. The odor coming from the compo sting facility is ugly. There is no

other word to describe it. The odors are nauseating and make outdoor activities

impossible. There is a public elementar school adjacent to my propert, and I

know that the students and teachers must be experiencing the same odors we do.


that the foregoing is true and correct.


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DEC ARTION OF BRENDA

, Brenda Kno hereby declare:

1. J am and at all times since 2001 have been a resident of the City

Adelanto. My home address is 18287 Cherimoya Road. I have personal

knowledge of the matters and facts set fort herein and, if-called as a witness,

could and would testify competently thereto.

2. My home is located approximately three miles from the Nursery

Products compo sting facility at 16284 Aster Road. Since the composting

operations began, there have been extremely bad odors early in the morning and in

the evenings, especially when the weather is warm. There certiny was no odor

before Nursery Products began operating in 2003. There has also been a huge

number of flies and large amounts of dust. I cannot sit outside in the evengs at

my home because of the odors and flies. I no longer hang laundr out to

because of the dust in the air. These problems did not exist before the composting

operation began. The odors and the dust have aggravated my as a and

breathing difficulties.

I declar under penalty of perjury under the laws of the State of Cali fomi



Notice of Motion and Motion for Preliminar Injunction, Mcmonmdum of Points and Authorities, and Declartions

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ARTION 0 GRACE RI E

I, Grace Rice, hereby declare:


Adelanto. My home address is 17919 Juniper Street, and I live with my husband.

I have persona knowledge of the matters and facts set fort herein and, if called as

a witness, could and would testify competently thereto.

2. My home is located approximately 2.5 miles from the Nursery

Products composting facility at 16284 Aster Road.

3. About two years ago, I staed to notice a foul stench at my house.

have noticed the stench a few days a week for the last couple of years. Some days

are worse than others. On the worst days, we canot open our windows. On

several occasions, the odor has been so foul that I got sick to my stomach. Before

the odor began about two years ago, we frequently kept the windows in our house

open.

4. About two years ago, I stared to notice many flies around the outside

of my house. I have noticed the flies daily since then and some days there are

more flies than others. At times, some of them have gotten inside the house where

my husband and I tr to kill them.


that the foregoing is true and correct.

Executed on June 30 , 2005.

Notice of Motion and Motion for Prelimina injunction. Memoradum of Points and Authorities and Declartions

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DECLARTION F JOHN L. YO

I, John L. Young, hereby declare:


Adelanto. My home address is 11281 Holly Road. I have personal knowledge of

the matters and facts set forth herein and, if called as a witness, could and would


2. My home is located approximately one mile from the NurerrProduct composting facility at 16284 Aster Road.

3. In early 2003 , I was drving a tractor and noticed grading, and a lot of

material being dumped at the Nursery Products facility. I noticed a foul stench

comig from the facility.

4. Since early 2003 , I have had problems with flies at my house. The

flies are present every day, some worse than others. On some days, I have seen

hundreds of flies at my house and if I open the door they will enter my home.

S. Thee or four times a week for the last couple of years I have

experienced a foul stench at my house when I am outside. This is the same stench

I smelled in early 2003 when I passed by the Nursery Products facility. I keep the

windows closed so the smell does not waft inside.


that the foregoing is tre and corrct.


Notice of Motion and Motion for Prelimina Injunction. Memoradum of Point and Autorities and Declarons

12492\0029\827410.4 -28-TOTAL P.

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DECLARATION OF MITCHELL E. ABBOTT

, Mitchell E. Abbott, declare:

1. I am an attorney duly admtted to practice before all cours of the

State of California and am a member of the law firm of Richards, Watson &

Gershon, with offices in Los Angeles, California. I am the member of that firm

primarily responsible for the representation of plaintiffs in this nuisance abatement

litigation. I have personal knowledge of the matters set forth herein and, if called

as a witness, could and would testify competently thereto.

2. Attached hereto as Exhibit "A" is a tre and correct copy of a

Settlement Agreement executed on November 1 , 2004 by and between the City of

Adelanto, plaintiff herein, and Nursery Products , LLC and Jeffrey P. Meberg,

defendants herein. The Settlement Agreement was executed for the puroses ofavoiding the expense of an appeal following the entr of summary judgment in

favor of the City of Adelanto in Nursery Products, LLC v. City of Adelanto

, C.D. Cal. Docket No. SACV 03- 1622-GLT (ANx).

3. Attached hereto as Exhibit "B" is a tre and correct copy of a letter I

received from David G. Hagopian, known to me to be counsel of record for

defendants Nursery Products , LLC and Jeffrey P. Meberg, dated June 21 , 2005.

The letter was sent in response to a telephone call in which I asked Mr. Hagopian

whether Nursery Products planned to comply with the terms of the Settlement

Agreement.



Executed on July 8 , 2005.

Notice of Motion and Motion for Preliminar Injunction , Memorandum of Points and Authorities, and Declarations12492\0029\827410. 29-

SETTLEMENT AGREEMENT

PARTIES

The parties to this agreement are Nursery Products, LLC , a Californialimited liability company ("Nursery Products ), Jeff Meberg ("Meberg ), and theCity of Adelanto ("City"

II. RECIT ALS

The Composting Facility

Nursery Products owns and operates a compo sting facility ("CompostingFacility") located at 16284 Aster Road, in the City of Adelanto. This CompostingFacility consists of approximately 40 acres of graded land, a trailer with officesand various pieces of equipment. The Composting Facility receives and processesboth "green waste" (grass clippings, wood chips, and similar materials) and bio-solids (treated sewage). After approximately 60 days of processing at theComposting Facility, the finished material is sold as agrcultural fertilizer.

The Existing Bio-Solids Agreement

Prior to commencing operations of the Composting Facility, NurseryProducts and the City entered into an agreement under which Nursery Productsagreed to accept for processing, process, and dispose of up to five thousand

000) tons per year of Class "B" bio-solids generated at the City' s wastewatertreatment plant, without cost to the City or its residents, for a period of fifty (50)years. Under the agreement the City is responsible for transporting bio-solids tothe Composting Facility, and for paying the costs of transport.

The Application for an Expanded Permit

In 2003 , Nursery Products applied to the California Integrated WasteManagement Board ("CIWMB") for an expanded solid waste facilities permit that

Page 1 of 1412492\0029\797265.

would allow it to increase the amount of material composed annually by nearly700%. The City expressed concerns to the CIWM about expanding the capacityof the Composting Facility. The CIWMB has taken no action on the applicationfor the expanded permt.

The Lawsuit

On November 17 2003 , Nursery Products and Meberg filed a lawsuitagainst the City in the United States District Court, Central Distrct of California(Docket number SACV 03- 1622-GLT (ANx)). The lawsuit alleged, in substancethat the City had violated the plaintiffs ' due process rights , had impermissiblyinterfered with Nursery Products ' business , and had caused har to NurseryProducts' and Meberg s reputations. Summary judgment in favor of the City wasentered by the Court on October 8 2004.

Attorney s Fees Motion

The City has advised Nursery Products and Meberg of the City' s intentionto bring a motion for an award of its reasonable attorney s fees incurred indefending the lawsuit, pursuant to 42 D. C. 1988. Nursery Products andMeberg dispute the City' s entitlement to recover its attorney s fees. Additionally,the City on October 21 , 2004, filed an application for an order taxing costs againstNursery Products and Meberg.

Settlement

The partes desire to avoid the risk and expense of further litigation andappeals, and desire fully and finally to resolve any and all claims by the Cityagainst Nursery Products and Meberg for the recovery of attorney s fees and costsand to achieve certainty regarding the future operation of the Compo sting Facilityand the disposal of sewage sludge generated at the City' s wastewater treatmentplant.

Page 2 of 1412492\0029\797265.

III. AGREEMENT

The paries agree as follows:

Cessation of Operations at and Relocation of the ComposfuFacility

1. Nursery Products and Meberg shall, on or bef.ore July 1 , 2005 , ceaseand desist from receiving and processing green waste, bio-solids, or any otherorganic material for composting at the Composting Facility located at 16284 AsterRoad in the City .of Adelanto.

2. Nursery Products and Meberg shall, on or before September 1 , 2005permanently cease and desist from conducting composting activities at 16284Aster Road in the City of Adelanto.

3. Nursery Products and Meberg shall , on or before September 1 2005remove all green waste, bio-solids, or other composting material, including allfinished compost material and related equipment, from the Compo sting Facility

- and shall clean and clear the site provided, however that finished compostmaterial and fertilizer may be retained on the site in connection with the operation

. .of a wholesale/retail commercial nursery business, subject to such conditions asmay be imposed by the City.

4. Nursery Products and Meberg shall, use their best efforts to relocatethe Composting Facility to a new site, located within or outside the City limits ofthe City of Adelanto, and to obtain all necessary pemrts therefor, on or beforeSeptember 1 2005.

Abandonment of Conditional Use Permit

The parties agree that the C.onditional Use Permt approved by the PlanningCommssion on December 4 2001 shall be dee"?ed abandoned and shall have nofurther force and effect as of September 1 2005 , or upon such earlier date ascomposting activities cease at the Composting Facility site.

Page 3 of 1412492\0029\797265.

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Amendment to Bio-Solids Agreement

Concurrently with the execution of this Settlement Agreement, the partiesshall execute an Amendment to the existing Bio-Solids Agreement, in the formattached hereto as Exhibit A.

Change of Name or Corporate Entity

The parties anticipate that the new composting facility may be operatedunder a business name different from Nursery Products, or by a corprate entitydifferent from Nursery Products. The pares hereby agree that this SettlementAgreement and the Amendment to the existing Bio-Solids Agreement, shall applyto and be binding upon any corporate or other legal entity in which NurseryProducts or Meberg has an ownership interest, and which is engaged in thecomposting business in the County of San Bernardino or at a location determnedby the City to be within a reasonable distance for delivery ofbio-solids generated

, at the City' s wastewater treatment plant.

Compliance Schedule: Fire Hydrants

1. Nursery Products and .Meberg shall submit to the City, on or beforeJanuary 2005 complete plans for insG:llation of all fire hydrants required by theCity' s Fire Department for the Composting Facility.

2. Nursery Products and Meberg shall, on or before March 1 2005commence constrction of water lines, fire hydrants, and other required firesuppression facilities in accordance with plans approved by the City of Adelanto.

3. Nursery Products and Meberg shall, on or before September 2005complete constrction of water lines, fire hydrants and other required firesuppression facilities in compliance with plans approved by the City of Adelanto.

Page 4 of 14

12492\0029\797265.

Compliance Schedule: Street Lighting

1. Nursery Products and Meberg shall submit to the City, on or beforeJanuar 1 2005 , complete plans for installation of all street lighting on PansyRoad as required for the Composting Facility.

2. Nursery Products and Meberg shall, on or before July 1 2005commence constrction of street lighting on Pansy Road in accordance with plansapproved by the City of Adelanto.

3. Nursery Products and Meberg shall, on or before September 1 2005complete constrction of street lighting on Pansy Road in accordance with plansapproved by the City of Adelanto.

Compliance Schedule: Landscaping

1. Nursery Products and Meberg shall submit to the City, on or beforeJanuary 1 2005; complete plans for landscaping the perimeter of the site, asrequired by the Mitigation Monitoring Plan approved by the Planning Commssionon December 4 2001.

2. Nursery Products and Meberg shall, on or before July 1 2005commence planting and landscaping on the perimeter of the site, in accordancewith plans approved by the City of Adelanto.

. 3. Nursery Products and Meberg shall, on or before September 1 2005complete planting and landscaping on the perimeter of the site, in accordance withplans approved by the City of Adelanto.

Compliance Schedule: Paving of Aster Road

1. As of September 1 2005 , or upon such earlier date as compostingactivities cease at the Composting Facility site, the obligation of Nursery Productsand Meberg to pave the entirety of Aster Road, as required by the Conditional UsePermit approved by the Planning Commssion on December 4, 2001 , shall bedeemed vacated.

Page 5 of 1412492\0029\797265.

2. Nursery Products and Meberg understand and agree that a conditionof issuance of a Certificate of Occupancy for any future use of the subject propertshall be a requirement that all required dedications and improvements abuttingrights-of-way for the site have been made to the ultimate right-of-way shown inthe General Plan and as determned by the City Engineer, as provided in AdelantoMunicipal Code Section 17. 10.090 et seq. Specifically, Nursery Products andMeberg understand and agree that, as a condition of operating any business orconnercial activity on the subject propert, they wil be required to constrct andinstall curbs, gutters, sidewalks, street trees, traffic improvements and drainage onAster Road, and to pave Aster Road to the center line, as provided in AdelantoMunicipal Code Section 17. 10.090(a)(I).

3. As a condition and term of this Settlement Agreement, the City,Nursery Products, and Meberg agree that in lieu of the required improvements , theCity Council shall accept from Nursery Products and Meberg an agreement tomake the specified improvements concurrently upon the development of theparcels ofpropert located to the east of the subject property, and identified asAssessor s Parcel Nos. 3128- 121- , 3128- 121- , and 3128- 121- , but in anyevent not later than September 1 2010, as provided in Adelanto Municipal CodeSection 17. 10.090(d)(l). The City, Nursery Products, and Meberg agree that theagreement to make the specified improvements shall be accompanied by securitydeposits, a corporate surety bond, or other security as authorized by the CityEngineer, as provided in Adelanto Municipal Code Section 17. 1 0.090( d)(2) and(3), and further that the security required shall be similar to that required of otherowners of similar propert.

4. Nursery Products and Meberg understand and agree that a conditionof issuance of a Certificate of Occupancy for any future use of the subject propertshall be a requirement that the primary vehicular entrance to the subject propertyshall be from Pansy Road, and that the primary vehicular entrance may not befrom Aster Road unless and until Aster Road is fully paved and improvedbetween Holly Road and Pansy Road, as provided in Adelanto Municipal CodeSection 17. 10.090(a)(l).

Page 6 of 14

12492\0029\797265.

Control of Odors V ectors Trash and Dust

The parties agree that until composting a,ctivities at the Composting Facilitycease, Nursery Products and Meberg shall use best efforts to eliminate or minimizeoffensive odors, vectors, trash, and dust emanating from the site. Specifically,Nurery Products and Meberg agree to refrain from accepting delivery of greenwaste or of any other materials known to aggravate problems of offensive odorsvectors, trash and dust emanating from the Composting Facility site.

Release of City s Claims for Attorney s Fees and Costs

In consideration of the agreements and undertkings set forth herein, Cityhereby releases Nursery Products and Meberg of and from any and all liability forpayment of taxable costs and attorney s fees incurred in defending the lawsuitpursuant to 42 D. C. 1988.

Abandonment of Plaintiffs ' Right to Appeal from Judgment

In consideration of the agreements and undertkings set forth hereinNursery Products and Meberg hereby abandon and relinquish any rights they mayhave to appeal from the judgment entered against them on October 8 , 2004.

Default

If any part fails to perform any obligation under this SettlementAgreement, the non-defaulting party may institute legal proceedings seeking adecree of specific performance or injunctive relief to enforce the terms of thisSettlement Agreement. If an action is brought to enforce or interpret provisions ofthis Settlement Agreement, the prevailing part shall be entitled to recoverreasonable attorney s fees, costs, and necessary disbursements in addition to anyother relief to which that party may be entitled.

Notices

Any notice or communication required under this Settlement Agreementshall be in writing, and shall be delivered personally, by facsimile (with original

Page 7 of 1412492\0029\797265.

forwarded by United States Mail), or by Federal Express or other similar courierpromising overnight delivery. Notice shall be deemed to have been duly givenand received: (a) when delivered, if personally delivered to the recipient; (b) whenfully transmitted to the recipient' s facsimile device, if sent by facsimile duringnormal business hours, provided such device is capable of generating a wrttenconfirmation of such transmission and receipt and provided further that an originalis deposited in first-class mail within two business days thereafter; or (c) on thefirst business dayfollowing delivery to an overnight delivery service, provideddelivery is confirmed by the delivery service. Any part hereto may at any timeby giving three days ' written notice to the other part, designate a new addressand/or facsimile number for notices and communications pursuant to thisSettlement Agreement.

If to the City:

City of AdelantoAttention: City Manager11600 Air ExpresswayP. O. Box 10Adelanto, CA 92301

With a copy to:Marguerite P. Battersby, Esq.City AttorneyRichards, Watson & Gershon355 South Grand Avenue, 40th FloorLos Angeles , California 90071-3101

Tel. (760) 246-2300Fax (760) 246-8421 Tel. (213) 626-8484

Fax (213) 626-0078

If to Nursery Products:

Nursery Products, LLC647 Camino de los MaresSuite 108- 174San Clemente, Calif. 92673

With a copy to:David G. Hagopian, Esq.Holdsworth & Hagopian, LLP650 Town Center Drive , Suite 800Costa Mesa, California 92626

Fax: (949) 366-2117Tel. (714) 384-4120Fax (714) 384-4121

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If to Jeff Meberg

Jeff Meberg647 Camino de los MaresSuite 108- 174San Clemente, Calif. 92673

With a copy to:David G. Hagopian, Esq.Holdsworth & Hagopian, LLP650 Town Center Drive, Suite 800Costa Mesa, California 92626

Fax: (949) 366-2117Tel. (714) 384-4120fax (714) 384-4121

Warranty of Capac xecute Agreement

Each, part represents and warrants that the individuals executing thisSettlement Agreement on each part's behalf possess full authority to execute thisagreement and to settle and compromise all claims settled and compromised bythis agreement.

Entire Agreement. Amendments. and Successors mJnterest

This Settlement Agreement contains the entire agreement of the paries andsupersedes any and all prior or contemporaneous understandings, negotiationsrepresentations, promises, and agreements, oral or wrtten, by or between theparties with respect to the matters set forth in this Settlement Agreement. ThisSettlement Agreement shall not be amended, modified, or otherwise changedexcept by a wrting duly signed by authorized representatives of Nursery ProductsMeberg, and the City. This Settlement Agreement shall be binding upon and inureto the benefit of the executors, administrators, personal representatives, heirssuccessors, and assigns of each of the parties.

Legal Advice

In entering into this Settlement Agreemeht, each part has had theopportnity to consult with and rely upon the advice of the attorneys of their ownchoice. Each part represents and warrants that the terms of this SettlementAgreement have been completely read by and explained to them by their attorneys

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and that those terms are fully understood and voluntaly accepted by them.

Severability

If any portion, provision, or par of this Settlement Agreement is helddetennned, or adjudicated to be invalid, unenforceable, or void for any reasonwhatsoever, each such portion, provision, or part shall be severed from theremaining portions, provisions, or parts of this Settlement Agreement, and shallnot effect the validity or enforceability of such remaining portions, provisions, orparts.

Governinf: Law

This Settlement Agreement shall be constred and interpreted in accordancewith the laws of the State of California.

Execution of Counterparts

This Settlement Agreement shall become effective upon execution by allparies. This agreement may be executed in counterparts, each of which shall bedeemed to be an original and all of which shall be deemed to constitute one andthe same document.

(Agreement continues next page)

PagelOof1412492\0029\797265.

IN WITNESS WHEREOF the partes have executed this SettlementAgreement as of November 2004.

ATTEST:

(Signatures continue next page

12492\0029\797265.

CITY OF ADELANTO



By:Secretary

JEFF MEBERG

By:Jeff Meberg

Page 11 of 14

IN WINESS WHREOFthe parties have executed th SettlementAgrement as of November 1 , 2004.

CITY OF ADELAN

ATTST: By:Mayor

City Clerk


By:

By:

By:

(Signatures contiue next pagel

12492\029\797265.Page II of14

APPROVED AS TO FORM AND CONTENT:

HOLDSWORTH & HAGOPIAN, LLPDAVID G. HAGOPIAN

Attorneys for PlaintiffsNursery Products, LLCand Jeff Meberg

MARGUERIEP. BATTERSBYCITY ATTORNEYCITY OF ADELANTO

RICHARDS, WATSON & GERSHONA Professional CorporationMITCHELL E. ABBOlTPATRICKK. BOBKOGINETT A L. GIOVINCO

By lV

Attorneys for Defendan ,City of Adelanto

Page 12 of 1412492\0029\797265.

EXHIBIT A"

AMNDMENT TO BIO-SOLID WASTE DISPOSAL AGREEMENT

TPS NURSERY PRODUCTS , NURSERY PRODUCTS, LLC, JEFFMEBERG, and the CITY OF ADELANO hereby amend the "Bio--Solid WasteDisposal Agreement" dated as of June 26, 2001 between TPS NUSERYPRODUCTS and the CITY OF ADELANTO, as follows:

1. All references to TPS Nursery Products in the ' 'Bio- Solid WasteDisposal Agreement" shall be deemed references to Nursery Products, LLC.

2. Paragraph 2 of the ' 'Bio- Solid Waste Disposal Agre ment" shall beamended to read: "Commencing November -1 2004 and continuing for fort-ttight(48) years thereafter, TPS Nursery Products or Nursery Products , LLC will acceptfor processing, process and dispose of Class ' B' bio- solids generated by or within

the City of Adelanto, not to exceed five thousand (5 000) tons per year withoutcost to CITY or its residents.

3. A new Paragraph 17 is added to the "Bio-Solid Waste DisposalAgreement" to read: "It is hereby agreed that this ' Bio-Solid Waste DisposalAgreement' and the ' Amendment to Bio-SolidWaste Disposal Agreement' shallapply to and be binding upon any corporate or other legal entity in which TPSNursery Products, Nursery Products, LLC, or Jeff Meberg has an ownershipinterest, and which is engaged in the composting business in the County of SanBernardino or at a location determned by the City to be within a

reasonabledistance for delivery ofbio-solids generated at the Citys wastewater treatmentplant."

12492\0029\797265.Page 13 of 14

EXIDBIT A"

In all other respects, the "Bio-Solid Waste Disposal Agreement " as,

amended, remains. in full force and effect.


CITY OF ADELANTOATTEST:

City Clerk

TPS NUERY PRODUCTS

Jeff Meberg

NUERY PRODUCTS , LLC


By:Secretary

Jeff Meberg

Page 14 of 1412492\0029\797265.

EXHIBIT A"

In all other respects, the "Bio-Solid Waste Disposal Agreement " as

amended, remains in full force and effect.


ATTEST:

J/LCity Clerk

Page 14 of 1412492\0029\797265.

CITY OF ADELANTO

By:Mayor

TPS ERY PRODUCTS

Jeff Meberg

NUSERY PRODUCTS , LLC

By:

By:

Jeff MebergPresident

Secretary

Jeff Meberg

1 .

.--------... ..-

EXHIT In all other respects, the "Bio-Solid Waste Disposal Agreement," as

amened rems in full forc and effect.


ITST: CIT OF ADELANTO

By:Mayor

City Cler

TPS NUERY PRODUCTS


By:

By:

Page 1400412492\029\791265.

EXHIBIT B

06/22/2005 08: 50 7143844121 HOLSWORTH HAGOPIAN PAGE 02/02

HOLDSWORTH 6 HAGOPIANime. 114038.-012

plllldhlawAtm,C

June 21 2005

Mitchell E. Abbott, Esq.Richards Watson Gershon355 S. Grand Avenue, 40th floorLos Angeles, CA.90071-3101

Re: Nursery Products, LLC, et al. v. City of AdelantQ, et al.

Via Facimile

Dear Mr. Abbott:

This letter responds to our conversation last week, at which tie youinquired as to the plan of Nurer Products to cease receivig waste and ceae itscompostig operations at its Adelanto site. Nursery Products intends to stopreceiving wate and bio-solids at the Adelanto site on July 1 2005 and will stopcompostig materials there on September 1 , 2005.

DGHlh

Holds & HagoIan, A Pm ulonal Corporion6s Town Cener Drve, Su! 800, Co Me$ California '926

m. 74- O FA 714.184-4121 ww.ltlawfrm.nurset/adtlanto/COabbott- 12 .11r

Recei ved at RWG Law on 6/22/2005 8:53:08 AM

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PROOF OF SERVICE(Code of Civil Procedure, g 1011)

I am an employee of First Legal Support Services and over the age of eighteen yearsand not a party to the within action; my business address is First Legal Support Services , 1511 WestBeverly Boulevard, Los Angeles, California 90026.

On July 12, 2005 , I served the following document(s):

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION;MEMORADUM OF POINTS AND AUTHORITIES AND DECLARTIONS OF

KEVIN MURPHY, MELVA DAVIS, DANIEL A. SARIENTO, MARARITASANTIAGO, ROBIN BRASHAW, BRUCE W. FOWLER, BRENDA KNOX

GRACE RICE, JOHN L. YOUNG, AND MITCHELL E. ABBOTT IN SUPPORTTHEREOF

by personally delivering the document( s) to the person( s) at the address( es) set forth below:

David G. Hagopian, Esq.Holdswort & Hagopian

A Professional Corporation650 Town ,Center Drive, Suite 800Costa Mesa, CA 92626

15 I declare under penalty of perjur under the laws of the State of California that theabove is true and correct.

Executed on July 12, 2005.

~~~~~~

21

12492\ 29\829767.

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