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HomeMy WebLinkAboutCounty of San Bernardino-2009-03 At erne Maintain dry April 8, 2009 Grand Terrace CALIFORNIA 22795 Barton Road Norm Dupont Grand Terrace Richards, Watson and Gershon California 92113 355 S. Grand Avenue Los Angeles, CA 90071 Civic Center (909)430 22I2 Fax (909) 783-7629 Reference: Perchlorate Litigation Settlement Mr. Dupont: The Grand Terrace City Council, at their meeting on March 24, 2009, approved City Clerk', a Release and Settlement Agreement between the City of Grand Terrace and the Department County of San Bernardino. Enclosed you will find two Agreements with original signatures. Once the agreement has been fully executed please return a copy for our files. If you have any questions please contact our office. Sincerely, Brenda Mesa City Clerk Enclosure cc: Steve Berry, Acting City Manager RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is made by and among the County of San Bernardino ("County"), on the one hand, and the Town of Apple Valley, the City of Barstow, the City of Big Bear Lake, the City of Fontana, the City of Grand Terrace, the City of Highland, the City of Loma Linda, the City of San Bernardino, the City of Victorville, the City of Yucaipa and the Town of Yucca Valley (collectively referred to as the "Plaintiffs" or"plaintiff"), on the other. This Agreement shall be effective at the time that the last party to this Agreement executes same and provides proof of that signing to the parties to this Agreement (the "Effective Date"). RECITALS A. The County and each of the Plaintiffs entered into separate Waste Delivery Agreement("WDA") which generally expire by their terms 15 years from the Contract Date, typically in 2012 or 2013, and which had identical terms (so far as the terms of each WDA is relevant to this Agreement). B. Each WDA provided for, among other things, the Plaintiffs to deliver certain specified solid waste to specified facilities within the County's Solid Waste Disposal System on the payment of certain charges ("Contract Rate" as defined in the WDA). C. Each WDA sets out substantially similar terms regarding the allowed changes to the Contract Rate. D. In the summer of 2005, pursuant to Section 4.2 of the WDA, the County adopted a $0.69 per ton fee designed to recover the costs it had incurred responding to 1 groundwater contamination of the compound perchlorate at or near its Mid -Valley Sanitary Landfill, resulting in an increase to the Contract Rate as an Uncontrollable Circumstance, as defined in the WDA (i.e., the "Perchlorate Fee"). In or about February 2006 the County commenced charging the Perchlorate Fee to the Plaintiffs. E. In August of 2006 the Plaintiffs filed a lawsuit which, among other things, challenged the imposition of the Perchlorate Fee under the WDA. The case was ultimately assigned to the Los Angeles County Superior Court, Eastern District and was entitled: Town of Apple Valley, et at v. County of San Bernardino, Los Angeles County Superior Court, Case No. KC049711 (hereinafter the "Litigation"). F. The Plaintiffs brought a summary adjudication motion on the cause of action that sought a declaration that the imposition of the Perchlorate Fee was not permitted under the current WDA. This motion was granted. In granting the motion the Superior Court held that the WDA did not allow the County to impose the Perchlorate Fee. G. The Court's ruling on Plaintiffs' motion for summary adjudication did not create a right of Plaintiffs to recover the Perchlorate Fee paid prior to the entry of the order on the motion. H. On a separate motion, the Court ruled that the Plaintiffs were the prevailing party and were entitled to recover their court costs. Additionally, the Plaintiffs have filed a motion to recover their attorneys' fees incurred in the action. The County has filed papers in opposition to this motion. To date the Court has not ruled on this motion. J. The County has filed a notice of appeal with respect to the Superior Court's ruling on Plaintiffs' motion for summary adjudication, and the Superior Court's ruling on 2 Plaintiffs' and the County's motions to be determined prevailing parties for purposes of an award of costs. This appeal is entitled: Town of Apple Valley, et at v. County of San Bernardino, Second Appellate District, Case No. B 208282 (hereinafter the "Appeal'). K. The parties desire to avoid the additional expense, delay and uncertainty that would result from the continuance of the Litigation and the Appeal and have agreed to settle said Litigation and Appeal and all of the underlying claims between them amicably, rather than engage in protracted litigation. II. SETTLEMENT TERMS 1. THE TERMS OF SETTLEMENT PAYMENT. In settling this matter the parties agree as follows: a. The County will refund the Perchlorate Fee actually paid by or on behalf of a Plaintiff that is a party to this Agreement, so long as the Perchlorate Fee was paid on solid waste that was disposed of pursuant to the terms of the WDA by that Plaintiff and such Plaintiff was required to pay the contractually agreed upon Contract Rate (i.e., that it was "WDA Waste"). This refund will be in the form of a credit of the total amount paid, to the individual Plaintiff or its respective waste hauler, whoever paid the Perchlorate Fee, of a pro-rated fixed amount over an eighteen (18) month period, such credit process to begin thirty (30) days after the effective date of this Agreement. The County has provided to Plaintiffs a schedule entitled: "Summary of WDA Cities' Perchlorate Charges and Collections" (Perchlorate Charge Schedule) dated December 4, 2008 as part of this settlement. Each Plaintiff will have until February 15, 2009 to notify the County of any corrections in the Perchlorate Charge Schedule as to that Plaintiff (or its refuse hauler). If no notice of correction is received by the County by the close of business of February 17, 3 2009, then the schedule will be deemed accurate and provide the "fixed amount' that will be credited on a pro-rated basis over an eighteen (18) month period. In the unlikely (and currently unforeseen) event that the WDA of a given Plaintiff expires or terminates before the repayment of all of the Perchlorate Fee due that Plaintiff and/or waste hauler, whomever paid the fee, the remaining unpaid Perchlorate Fee amount shall be paid by the County to that Plaintiff and/or waste hauler, whoever paid the fee, within thirty (30) days of the expiration or termination of the relevant WDA. The Plaintiffs each expressly acknowledge that they are waiving any right to bring any Court action to recover the Perchlorate Fee (other than to enforce the terms of this Agreement) and that they are further waiving any right to seek interest relative to the Perchlorate Fee paid to the County under the WDA at any other time (other than any right to interest that might otherwise arise in any action to enforce the terms of this Agreement). b. No Plaintiff will be required to pay to the County the Perchlorate Fee (or, during the duration of the WDAs referenced in Recital "A" above, any other surcharge pursuant to Section 4.2 of the WDA that is designed to recover the County's investigation and remediation costs with respect to the compound perchlorate in or near its Mid-Valley Sanitary Landfill) charged by the County relative to any WDA Waste, regardless of whether that plaintiff(or its hauler, as the case may be) has been billed such Perchlorate Fee. The County expressly acknowledges that it is waiving any right to seek to recover such Perchlorate Fee, whether previously billed or otherwise, under the WDA and agrees to act in accordance with the Superior Court's ruling. c. The Plaintiffs agree that they will not seek to recover any Court costs or attorneys' fees or other fees or costs awarded to them as the prevailing party to the 4 Litigation or Appeal (as specified above) and each Plaintiff expressly acknowledges that it is waiving all claims to recover such amounts from the County. d. DISMISSAL OF APPEAL. The County will dismiss the Appeal with prejudice within 15 calendar days after the Effective Date of this Agreement. 2. NOTIFICATION TO SUPERIOR COURT OF SETTLEMENT AND WITHDRAWAL OF MOTION FOR ATTORNEYS' FEES: Within 15 calendar days of the Effective Date of this Agreement the Plaintiffs will notify the Superior Court of the fact of settlement and take their existing motion for attorneys' fees and costs off calendar and will not refile that or any other motion, including but not limited to similar motions seeking attorneys' fees and costs. In the event the Court rules on that motion prior to it being taken off calendar, the parties agree that such ruling shall be without force or effect and that the provisions of the Agreement, and the entire Agreement, shall remain in full force and effect. 3. DISCRETION WITH INDIVIDUAL PLAINTIFF ON APPLICATION OF CREDIT AMOUNT: The County understands and agrees that each Plaintiff has separate contractual agreements with one or more waste haulers serving its residents. The County further agrees that it will not seek to interfere with how each Plaintiff negotiates and resolves the application of the credit amount within its boundaries and with its respective waste hauler(s). 4. THE MUTUAL RELEASES. Each and every party to this Agreement , on behalf of that party, and its representatives, trustees, predecessors, successors, assigns, affiliates, subrogors, subrogees, assignees, assignors, subsidiaries, agents, employees, servants, officers, elected official, directors and attorneys ("Releasors") 5 release every other party to this Agreement and every other parties' representatives, trustees, predecessors, successors, assigns, affiliates, subrogors, subrogees, assignees, assignors, subsidiaries, agents, employees, servants, officers, elected officials, directors and attorneys ("Releasees") from any and all disputes, damages, actions, causes of action, suits, rights, demands, controversies, entitlement to equitable relief, liabilities, fees, costs, interest and any other claims, of any nature whatsoever, known or unknown, suspected or unsuspected, whether in tort or in contract or under any other theory, arising out of, in connection with or relating in any way to the Perchlorate Fee and the resulting Litigation and Appeal, as described in this Agreement or any of the facts alleged in the Litigation or otherwise asserted in the Appeal. 5. RELEASE OF UNKNOWN CLAIMS/WAIVER OF CIVIL CODE SECTION 1542. Each party to this Agreement expressly, voluntarily and knowingly waives and relinquishes all rights arising out of, in connection with or relating in any way to the Perchlorate Fee and the resulting Litigation and Appeal, as described in this Agreement or any of the facts alleged in the Litigation or otherwise asserted in the Appeal to which it or its Releasors would be entitled now or at any time hereafter under section 1542 of the Civil Code, as against the other parties to this Agreement and their Releasees, and does so understanding and acknowledging the significance of such specific waiver. Section 1542 of the Civil Code provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." 6 6. ATTORNEYS' FEES AND COSTS. The parties to this Litigation and the Appeal will each bear their own attorneys' fees and other costs and expenses arising in the Litigation and/or Appeal or in any way arising from the imposition of the Perchlorate Fee or the challenge of that fee by the plaintiffs or the defense of that challenge by the County. 7. COMPROMISE. This Agreement is the result of a compromise and settlement of disputed claims, and nothing set forth in it shall be deemed or construed as an admission of any liability by any of the parties to any of the other parties or the Releasees. 8. MUTUAL DRAFTING. The parties, having mutually drafted this Agreement, agree that no party to the Agreement will be deemed to have been the primary author of this Agreement or any portion of it. The parties therefore agree that section 1654 of the Civil Code, and other legal principles or laws that call for the construction of ambiguous or uncertain terms against the drafting party shall not apply or be invoked for any purpose whatsoever. 9. NO ASSIGNMENT. The parties have not assigned any of the claims, demands, or causes of action that are released and discharged under this Agreement. 10. COUNTERPARTS. This Agreement may be executed in several counterparts and by fax copies and, as so executed, will constitute one agreement, binding on the parties to this Agreement, notwithstanding that such parties are not signatories to the original or the same counterparts. 11. WARRANTIES OF COMPREHENSION, CONSENT AND AUTHORITY. Each person executing this Agreement warrants that he or she 7 comprehends the terms of this Agreement, and further warrants that he or she is executing this Agreement freely on the advice of the undersigned counsel and that, if signing on behalf of an entity, he or she has the right and authority to execute the Agreement on that entity's behalf. 12. INTEGRATED AGREEMENT. This Agreement is the final expression of the parties' agreement with respect to the settlement of the Litigation and the Appeal and supersedes all prior written or oral communications between the parties. The parties cannot amend, alter, modify, or otherwise change this Agreement, except by a writing executed by all parties hereto and expressly stating that it is an amendment to this Agreement. The parties will make no claim, and waive any right they now have or may have, based upon any alleged oral alteration, oral amendment, or oral modification, except as set forth expressly in a written amendment executed as provided in this paragraph. 13. CONFIDENTIALITY. No party to this Agreement shall publicize the settlement through the public media, issue press releases about the settlement or its terms, or otherwise affirmatively seek to create public media articles about the terms of the settlement. Nothing in this Section shall preclude any party from complying with any requirement of law, including the Public Records Act or the Ralph M. Brown Act, with respect to any disclosure mandated by operation of law or court order, or in any public reporting requirement or pubic disclosure requirement of any of the parties. Nothing in this provision shall preclude any party from disclosing the terms of this settlement in any action seeking to enforce this Agreement or any portion thereof. 14. SEVERABILITY. If any provision of the Agreement is held invalid, the remainder of the Agreement shall nevertheless remain in full force and effect in all other 8 circumstances, so long as the essential purpose of the Agreement can still be achieved by both sides to the settlement embodied in this Agreement. The undersigned parties have read this Agreement and fully understand it. Each party has had an opportunity to review this Agreement with their respective legal counsel and have done so to their final understanding and satisfaction. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates shown below. DATED: TOWN OF APPLE VALLEY By: (signature) (type or print name) Its: (type or print title) DATED: CITY OF BARSTOW By: (signature) (type or print name) Its: (type or print title) 9 DATED: _ CITY OF BIG BEAR LAKE By: (signature) (type or print name) Its: (type or print title) DATED: CITY OF FONTANA By: (signature) (type or print name) Its: (type or print title) DATED: 03-24-09 - CITY OF GRAND TERRACE By.:7 f ignature) -� Maryetta Ferre (type or print name) Its: Mayor (type or print title) 10 DATED: CITY OF HIGHLAND By: (signature) (type or print name) Its: (type or print title) DATED: CITY OF LOMA LINDA By: (signature) (type or print name) Its: (type or print title) DATED: CITY OF SAN BERNARDINO By: (signature) (type or print name) Its: (type or print title) 11 DATED: __ CITY OF VICTORVILLE By: (signature) (type or print name) Its: (type or print title) DATED: CITY OF YUCAIPA By: (signature) (type or print name) Its: (type or print title) DATED: TOWN OF YUCCA VALLEY By: (signature) (type or print name) Its: (type or print title) 12 Dated: COUNTY OF SAN BERNARDINO By: (signature) (type or print name) Its: (type or print title) APPROVED AS TO FORM: DATED: RICHARDS, WATSON & GERSHON, a Professional Corporation, Attorneys for Plaintiffs, by NORMAN A. DUPONT Signature Dated: COUNTY OF SAN BERNARDINO By: _ PENNY ALEXANDER-KELLEY Deputy County Counsel for County of San Bernardino 13