HomeMy WebLinkAbout20160708_SettlementAgreement_RiverWatch_SignedSETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
This Settlement Agreement and Mutual Release of Claims ("Agreement") is entered into
between California River Watch ("CRW") and the City of San Luis Obispo ("City") (collectively,
the "Parties") with respect to the following facts and objectives:
RECITALS
WHEREAS, CRW is a 501(c)(3) non-profit, public benefit corporation organized under the
laws of the State of California, with headquarters located in Sebastopol, California and offices in
Los Angeles, California. The mailing address of River Watch's northern California office is 290 S.
Main Street, #817, Sebastopol, CA 95472. The mailing address of River Watch's Southern
California office is 7401 Crenshaw Blvd. # 422, Los Angeles, CA 90043.
River Watch is dedicated to protecting, enhancing, and helping to restore surface and ground
waters of California, including rivers, creeks, streams, wetlands, vernal pools, aquifers and
associated environs, biota, flora and fauna, and educating the public concerning environmental
issues associated with these environs.
WHEREAS, the City, organized under the laws of the State of California, owns and
operates a collection system for the purpose of collecting and conveying for treatment wastewater
from residential, commercial, and industrial sources, and owns and operates a wastewater treatment
plant called the Water Resource Recovery Facility ("WRRF") (collectively, the "POTW
Facilities");
WHEREAS, the City is currently undertaking upgrades to the WRRF intended to address,
among other things, nutrients, organics, solids, and disinfection byproducts, and to increase capacity
of the WRRF;
WHEREAS, the City, for the purpose of maintaining habitat for migratory birds and other
wildlife, recharges clay lined ponds with recycled water treated according to Title 22 of the
California Code of Regulations;
WHEREAS, on or about October 8, 2015, CRW provided the City with a Notice of
Violation and Intent to File Suit under the Federal Water Pollution Control Act ("Clean Water Act"
or "CWA"), 33 U.S.C. §1365, ("CWA Notice Letter");
WHEREAS, the City denies any and all of CRW's allegations and claims in the CWA
Notice Letter;
WHEREAS, CRW and the City, through their authorized representatives and without either
adjudication of CRW's claims or admission by the City of any alleged violation or other
wrongdoing, have chosen to resolve in full CRW's allegations in the CWA Notice Letter through
settlement and avoid the cost and uncertainties of further litigation; and
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WHEREAS, CRW and the City have agreed that it is in their mutual interest to enter into
this Agreement setting forth the terms and conditions appropriate for resolving CRW's allegations
set forth in the CWA Notice Letter.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, CRW and the City hereby agree as follows:
AGREEMENT
1. Definitions
A. Effective Date: The term "Effective Date," as used in this Agreement, shall mean
the date upon which this Agreement is signed by all Parties.
B. Condition Assessment: The term "Condition Assessment" shall mean a report that
comprises inspection, rating, and evaluation of the existing condition of a gravity sewer collection
system. Inspection is based upon closed circuit television ("CCTV") inspections for gravity mains,
manhole inspections for structural defects, and inspections of pipe connections at the manhole.
After CCTV inspection occurs, pipe conditions are assigned a grade based on the Pipeline
Assessment and Certification Program ("PACP") rating system, developed by the National
Association of Sewer Service Companies. The PACP is a nationally recognized sewer pipeline
condition rating system for CCTV inspections.
C. Full Condition Assessment: A Condition Assessment of all gravity sewer lines
except for gravity sewer lines (not force mains) located within two hundred (200) feet of surface
waters, defined as a river, creek, or stream (i.e., those gravity sewer lines not included in the
definition of Surface Water Condition Assessment).
D. Surface Water Condition Assessment: A Condition Assessment of gravity sewer
lines (not force mains) within two hundred (200) feet of surface waters, defined as a river, creek, or
stream.
E. Significantly Defective: A sewer pipe is considered to be "Significantly Defective"
for purposes of this Agreement if the pipe's condition receives a structural grade of five (5) based on
the PACP rating system. The PACP assigns grades based on the significance of the defect, extent of
damage, percentage of flow capacity restriction, and/or the amount of pipe wall loss due to
deterioration. Grades are assigned as follows:
5 Most significant defect
4 — Significant defect
3 — Moderate defect
2 — Minor to moderate defect
1 — Minor defect
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2. Collection System Investigation & Repair
A. Surface Water Condition Assessment
(i) The City shall continue performing its Surface Water Condition Assessment, in
accordance with the 2014 Sewer System Management Plan Update ("SSMP Update"), Section IV,
"Predictive Maintenance and Preventive Maintenance Programs" and "Visual/CCTV Inspections,"
or as amended.
(ii) Within five (5) years of the Effective Date of this Agreement, the City shall repair,
replace, or take other appropriate action for gravity sewer lines rated Significantly Defective (PACP
structural rating grade 5) by the City's existing Surface Water Condition Assessment, completed as
of the Effective Date of this Agreement. The phrase "take other appropriate action" in this
circumstance means to divert sewage flow from a Significantly Defective sewer line or abandon the
Significantly Defective sewer line in lieu of repair or replacement.
(iii) With respect to gravity sewer lines that receive a PACP structural rating grade 4 by
the City's existing Surface Water Condition Assessment, completed as of the Effective Date of this
Agreement, the City shall consider, among other City priorities, the proximity of those gravity
sewer lines to surface waters, defined as a river, creek, or stream, when determining whether to
repair, replace, or take other appropriate action, if any, regarding those lines..
B. Full Condition Assessment
Within seven (7) years of the Effective Date of this Agreement, the City shall complete a
Full Condition Assessment, excepting those gravity sewer lines that, at the time of the Full
Condition Assessment work is being undertaken in a given area, have been inspected by CCTV
within the last five (5) years, or constructed within the last ten (10) years.
3. Collection System Overflow Response and Reporting
A. Volume and Flow Estimations: The City shall ensure Section 4.2 of the City's
Sanitary Sewer Overflow Response Plan ("SSORP") entitled "Spill Estimation," and Appendices E
and F, if appropriate, indicate that the City shall include in reports to the CIWQS State Reporting
System the method of calculating estimated total spill volume, spill volume that reached surface
waters, and spill volume recovered.
B. Witness Reports: The City shall, consistent with the City's SSMP and SSORP,
continue to document any corroborated witness statements for use during sanitary sewer overflow
("SSO") identification and volume calculation processes.
C. Photographs: The City shall continue its practice of taking photographs of an SSO
event. The City shall augment SSMP, Section IV, entitled "City Sanitary Sewer Overflow
Emergency Response," and SSORP, Section 2.3, entitled "Preliminary Damage Assessment" to
state that, where safe and possible, photographs should be taken that may aid in establishing and
justifying spill volume.
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D. Water Quality Sampling_ In addition to the sampling performed by the City pursuant
to SSMP, Section VI, entitled "City Sanitary Sewer Overflow Emergency Response," and SSORP,
Appendix B, entitled "Sewer System Overflow Sampling Plan," the City shall undertake the
following sampling:
For one (1) year from the Effective Date of this Agreement, for any SSO where five
thousand (5,000) gallons or more enters surfaces waters, the City shall sample, where feasible, at
the point of entry, and at a point upstream and downstream, and analyze for Fecal Coliform,
Ammonia, and Enterococci.
For one (1) year from the Effective Date of this Agreement, for any SSO where five
thousand (5,000) gallons or more enters surfaces waters, the City shall also conduct CAM-17
analysis of the sample taken, where feasible, at the point of entry. The City will make the results of
any such sampling available to CRW at the City's offices.
Feasibility for obtaining a sample will depend on whether sufficient flow exists to collect a
representative, uncontaminated sample, and whether conditions permit City staff to safely obtain a
sample (i.e., City staff will not be placed at risk for injury in severe weather).
Any requirements under this provision which conflict with sampling or testing requirements
by a regulatory agency (e.g., the sampling location, frequency, parameters analyzed, etc.), either
currently in effect or adopted in the future, shall cease to be in effect under this Agreement between
the Parties. The absence of sampling or testing requirements by a regulatory agency shall not be
considered a conflict with regulatory agency requirements.
E. Notification: For Class 1 SSOs of one thousand (1,000) gallons or greater that enter
or will probably enter surface waters, the City shall as soon as possible, but not later than two (2)
hours after (A) becoming aware of the SSO, (B) notification is possible, and (C) notification can be
provided without substantially impeding cleanup and other emergency measures, notify California
Office of Emergency Services (Cal OES).
F. Investigation and Repair: SSO cleanup will proceed as soon as possible and steps
will be taken as necessary to mitigate the impacts of the spill. The City shall continue its practice of
investigating the cause of an SSO entering surface waters and will employ the following measures
to prevent future overflows: (a) if the SSO is caused by a structural defect, then the City will take
timely action to repair or replace the defect, or take other action necessary to protect water quality
(e.g., divert the flow until the repair/replacement can occur); or (b) if the defect is non-structural,
such as a grease blockage or vandalism to a manhole cover, the City will implement appropriate
measures (e.g., additional maintenance or cleaning), where needed and feasible, to address the
cause.
4. CIWOS Link
The City shall create a link from the City's website to the State Water Resources Control
Board's CIWQS SSO Public Reports' website, and shall publicize this new link to customers and
members of the public.
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5. WRRF Imorovements and Completion of Time Schedule Order Tasks
The City shall remove the WRRF's supernatant lagoon in accordance with the provisions of
the City's Facilities Plan. The City shall further complete the tasks prescribed in Paragraphs 2 and 3
of Time Schedule Order R3-2014-0036, or as amended, no later than November 30, 2019.
6. Supplemental Environmental Project
The City shall implement the following Supplemental Environmental Project ("SEP"),
which the Parties agree is intended to secure significant benefits to the local environment. CRW
shall not receive any of the SEP funds to use for any purpose.
A. Lateral lnfflection and RegairPrograrn: Within one (1) year from the Effective Date
of this Agreement, the City staff shall recommend to the City Council an ordinance establishing a
program for the inspection, repair, and/or replacement of private sewer laterals. The program
proposed will use the following events as a basis or "trigger" for inspection, repair and/or
replacement:
(1) Transfer of ownership of the property if no inspection or replacement of the sewer lateral
occurred within twenty (20) years prior to the transfer;
(2) If two (2) or more sanitary sewer overflows are caused by the same private sewer lateral
within the immediate past two (2) years; or
(3) Where the application for a building permit indicates the expected addition of flow
through the private lateral (e.g., addition of bathrooms, bedrooms, additional living
space).
B. Voluntary Private Lateral Replacement Rebate Program: The City staff shall
recommend a Voluntary Private Lateral Replacement Rebate Program. For three (3) years from
establishment, the Program will provide, on a first come, first served basis, one thousand ($1,000)
dollars toward the total replacement costs of a residential private lateral, not to exceed a total of
fifty thousand ($50,000) dollars annually.
7. CRW Attorney's Costs and Fees
Within thirty (30) calendar days after the Effective Date of this Agreement, the City shall
pay CRW the sum of thirty-eight thousand five hundred dollars ($38,500) as reimbursement for
CRW's investigative, expert and attorneys' fees and costs. Payment shall be made by the City to
CRW in the form of a single check payable to "California River Watch," and shall constitute full
satisfaction and payment for all costs of litigation and attorneys' fees incurred by CRW that have or
could have been claimed in connection with CRW's allegations in its CWA Notice Letter up to and
including the Effective Date of this Agreement, and for CRW's expert and attorneys' fees and costs
spent monitoring and enforcing the City's compliance with ongoing obligations under this
Agreement up to and including the Termination Date, with the exception of any action taken to
enforce this Agreement in accordance with the dispute resolution procedures set forth in Section 11,
below.
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Payment shall be mailed to the Law Office of Jack Silver, P.O. Box 5469, Santa Rosa,
California 95402 or, if via Federal Express or other overnight service, to Law Office of Jack Silver,
100 E Street, Suite 318, Santa Rosa, California 95404.
8. Termination Date
This Agreement shall terminate seven (7) years from the Effective Date.
9. No Admission or Findin
Neither this Agreement nor any payment pursuant to this Agreement shall constitute
evidence or be construed as a finding, adjudication, or acknowledgment of any fact, law or liability,
nor shall it be construed as an admission of violation of any law, rule or regulation. However, this
Agreement and/or any payment pursuant to this Agreement may constitute evidence in actions
seeking compliance with this Agreement.
10. Mutual Release of Liabilitv and Covenant Not to Sue
A. In consideration of the above, and except as otherwise provided by this Agreement,
the Parties hereby forever and fully release each other and their respective successors, assigns,
directors, officers, agents, board members, representatives, and employees, and all persons, firms
and corporations having an interest in them, from any and all environmental claims and demands of
any kind, nature, or description whatsoever, and from any and all liabilities, damages, injuries,
actions or causes of action, either at law or in equity, whether known or unknown, which the Parties
have or may have against each other based upon CRW's allegations as set forth in the CWA Notice
Letter as to the City's POTW Facilities up to and including the Effective Date of this Agreement.
B. The Parties acknowledge that they are familiar with section 1542 of the California
Civil Code, which provides:
A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor.
The Parties hereby waive and relinquish any rights or benefits they may have under
California Civil Code section 1542 with respect to any other claims against each other arising from,
or related to, the allegations and claims as set forth in the CWA Notice Letter.
C. Beginning on the Effective Date and terminating seven (7) years thereafter, CRW
agrees that neither CRW, its officers, executive staff, members of its governing board nor any
organization under the control of CRW, its officers, executive staff, or members of its governing
board, will serve any 60-day Notice Letter or file any lawsuit against the City seeking relief for
alleged violations of the Clean Water Act, the Endangered Species Act, or RCRA, or similar state
statutes and/or regulations, including the California Porter -Cologne Water Quality Control Act
and/or the California Endangered Species Act, for the City's POTW Facilities, nor will CRW
support such lawsuits against the City brought by other groups or individuals by providing financial
assistance, personnel time, expert evaluation, or any other affirmative actions.
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11. Dispute Resolution Procedure
A. Any disputes with respect to any of the provisions of this Agreement shall be
resolved through the following procedure. The Parties covenant and agree that, if either party
believes the other is in violation of one or more terms of this Agreement, the party shall provide
notice to the other in writing of what actions or inactions they deem to be in violation of this
Agreement. Within thirty (30) days of receipt of such notice, the party receiving the notice shall
respond to the notice in writing. If the Parties still dispute compliance with this Agreement, within
an additional thirty (30) days, the Parties will meet and confer in a good faith attempt to resolve
their dispute. If the Parties cannot informally resolve the dispute, they shall first attempt to resolve
such dispute through mediation, using a mutually agreed upon mediator. Should mediation be
unsuccessful, any judicial dispute which is brought in state court in California shall be resolved by a
general reference to a referee as provided in California Code of Civil Procedure ("CCP") Section
638. The referee shall be a retired judge or justice. The referee shall be selected by mutual written
agreement of the parties; provided, however, that if the parties do not select a referee within fifteen
(15) days after either party invokes this provision, the referee shall be selected by the Presiding
Judge of the Court (or his or her representative) as'provided in CCP Section 638 and the following
related sections. The referee shall determine all issues in accordance with existing California law
and the California rules of evidence and civil procedure. The referee shall be empowered to award
injunctive relief to take action specified in this Agreement and rule on any motion which would be
authorized in a trial, including motions for summary judgment or summary adjudication. The
award that results from the decision of the referee will be entered as a judgment in the court that
appointed the referee, in accordance with the provisions of CCP Sections 644(a) and 645. The
parties reserve the right to seek appellate review of any judgment or order to the same extent
permitted in a court of law. The Parties shall each bear their own costs and attorney's fees in
connection with the mediation and/or judicial dispute.
B. If CRW asserts that the City is in violation of this Agreement, and the City corrects
the action or inaction within sixty (60) days of written notice from CRW describing the asserted
violations, no further enforcement action under the terms of this Agreement shall be taken by either
party.
12. Force Maieure
Separate from, and in addition to, any other limitations on, or amendments to, the City's
obligations under this Agreement, the City's obligations to comply with any provisions of this
Agreement shall be excused or deferred if compliance, or a delay in compliance, is caused by an
event or circumstance beyond the reasonable control of the City or any entity controlled by the City,
including its contractors, and which event or circumstance could not have been reasonably foreseen
and prevented by the exercise of due diligence by the City. Where implementation of the actions
set forth in this Agreement, within the deadlines prescribed, becomes unachievable, despite the
timely good faith efforts of the City, the City shall notify CRW in writing within sixty (60) days of
the date that the City knew of the event or circumstance precluding compliance, and shall describe
the reason for the non-performance. The Parties agree to meet and confer in good faith concerning
the non-performance and, where the Parties concur that the non-performance was or is impossible,
despite the timely good faith efforts of one of the Parties, compliance shall be excused or new
performance deadlines shall be established by agreement of the Parties. In the event that the Parties
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1445804.1
cannot timely agree, either party shall have the right to invoke the dispute resolution procedure
described herein.
13. General Provisions
A. Construction. The language in all parts of this Agreement shall be construed
according to its plain and ordinary meaning, except as to those terms defined by law, in the Clean
Water Act, or specifically herein.
B. Choice of Law. This Agreement shall be governed by the laws of the United States,
and where applicable, the laws of the State of California.
C. Severability. In the event that any provision, section, or sentence of this Agreement
is held by a court to be unenforceable, the validity of the enforceable provisions shall not be
adversely affected.
D. Correspondence. All notices required herein or any other correspondence
pertaining to this Agreement shall be sent by regular, certified, overnight, or electronic mail as
follows:
If to CRW:
California River Watch
290 S. Main Street, Suite 817
Sebastopol, CA 95472
Telephone: (707) 528-8175
Facsimile: (707) 528-8675
And to:
Jack Silver
Law Offices of Jack Silver
P.O. Box 5469
Santa Rosa, California 95402-5469
Telephone: (707) 528-8175
warrioreco@yahoo. coom
David J. Weinsoff
Law Office of David J. Weinsoff
138 Ridgeway Avenue
Fairfax, California 94930
Telephone: (415) 460-9760
david@weinsofflaw.com
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If to the City:
Carrie Mattingly
Utilities Director
City of San Luis Obispo
879 Morro Street,
San Luis Obispo, CA 93401
Telephone: (805) 781-7205
cmattingly@slocity.org
Christine Dietrick
City Attorney
City of San Luis Obispo
City Hall, Room 10
990 Palm Street
San Luis Obispo, CA 93401
Telephone: (805) 781-7140
cdietrick@slocity.org
San Luis Obispo City Clerk
City of San Luis Obispo
City Hall, Room 10
990 Palm Street
San Luis Obispo, CA 93401
And to:
Nicole E. Granquist
Downey Brand LLP
621 Capitol Mall, 18th Floor
Sacramento, CA 95814
Telephone: (916) 444-1000
ngranquist@downeybrand.com
Notifications of communications shall be deemed submitted on the date that they are sent by
electronic mail, postmarked and sent by first-class mail, or deposited with an overnight
mail/delivery service. Any change of address or addresses shall be communicated in the manner
described above for giving notices.
E. Counterparts. This Agreement may be executed in any number of counterparts, all
of which together shall constitute one original document. Telecopy, electronic, and/or facsimile
copies of original signature shall be deemed to be originally executed counterparts of this
Agreement.
F. Assignment. Subject only to the express restrictions contained in this Agreement,
all of the rights, duties and obligations contained in this Agreement shall inure to the benefit of and
be binding upon the Parties, and their successors and assigns.
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G. Modification of the Agreement. This Agreement, and any provisions herein, may
not be changed, waived, discharged or terminated unless by a written instrument, signed by the
Parties.
H. Full Settlement. This Agreement constitutes a full and final settlement of this
matter. It is expressly understood and agreed that this Agreement has been freely and voluntarily
entered into by the Parties with and upon advice of counsel.
I. Integration Clause. This is an integrated Agreement. This Agreement is intended
to be a full and complete statement of the terms of the agreement between the Parties and expressly
supersedes any and all prior oral or written agreements, covenants, representations, and warranties
(express or implied) concerning the subject matter of this Agreement.
J. Negotiated Agreement. The Parties have negotiated this Agreement, and agree that
it shall not be construed against the party preparing it, but shall be construed as if the Parties jointly
prepared this Agreement and any uncertainty and ambiguity shall not be interpreted against any one
party.
K. Authority. The undersigned representatives for CRW and the City each certify that
he or she is fully authorized by the party whom he represents to enter into the terms and conditions
of this Agreement.
The Parties hereby enter into this Agreement.
Date: u r`o" A
Date:
2016 CALIFO A RIVER W
By:
koll Name: I— b,+ HQ 1,i y4J
Title: � q} 4 c
cl
2016 CITY OF SAN LUIS OBISPO
Name:
Title:
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1445804.1
G. Modification of the Agreement. This Agreement, and any provisions herein, may
not be changed, waived, discharged or terminated unless by a written instrument, signed by the
Parties.
H. Full Settlement. This Agreement constitutes a full and final settlement of this
matter. It is expressly understood and agreed that this Agreement has been freely and voluntarily
entered into by the Parties with and upon advice of counsel.
I. Integration Clause. This is an integrated Agreement. This Agreement is intended
to be a full and complete statement of the terms of the agreement between the Parties and expressly
supersedes any and all prior oral or written agreements, covenants, representations, and warranties
(express or implied) concerning the subject matter of this Agreement.
J. Negotiated Agreement. The Parties have negotiated this Agreement, and agree that
it shall not be construed against the party preparing it, but shall be construed as if the Parties jointly
prepared this Agreement and any uncertainty and ambiguity shall not be interpreted against any one
party.
K. Authority. The undersigned representatives for CRW and the City each certify that
he or she is fully authorized by the party whom he represents to enter into the terms and conditions
of this Agreement.
Date:
The Parties hereby enter into this Agreement.
2016
Date: d L) ( , 2016
1445904 1
CALIFORNIA RIVER WATCH
Name:
Title:
CITY OF SAN LUIS
M.
N+ e: K041
Title: 647 A
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SETTLEMENT AGREEMENT: CRW v. City of San Luis Obispo
APPROVED AS TO FORM:
For CRW:
Date: Z , 2016 Ll W OFFICE OF DAVID J. WEINSOFF
L.
By: David J. Weinsoff, Esq. Of
For the City:
Date: , 2016 DOWNEY BRAND LLP
By: Nicole Granquist, Esq.
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SETTLEMENT AGREEMENT: CRW v. City of San Luis Obispo
1445804.1
APPROVED AS TO FORM:
For CRW:
Date: 12016 LAW OFFICE OF DAVID J. WEINSOFF
By: David J. Weinsoff, Esq.
For the City:
2016 DOWNEY BRAND LLP
By: Nicole Granquist, Isq.
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