2009/10/27 City Council Resolution 2009-116RESOLUTION NO. 2009-116
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING A SETTLEMENT AGREEMENT
RELATING TO STUTR UD V. CITY OF ROHNERT PARK
(Sonoma County Superior Court No. SCV- 237482)
WHEREAS, the City Council wishes to enter into a settlement agreement
regarding Stutrud v. City of Rohnert Park, Sonoma County Superior Court Case No.
SCV- 237482.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Rohnert Park that the City Council authorizes and approves the attached Settlement
Agreement.
BE IT FURHTER RESOLVED that the Mayor is authorized and directed to
execute same for and on behalf of the City of Rohnert Park.
DULY AND REGULARLY ADOPTED by the City Council of the City of
Rohnert Park this 27th day of October, 2009.
ATTEST:
Clerk
CITY OF ROHNERT PARK
. awai (S
Mayor
LIPOftNI,p
BELFORTE: AYE CALLINAN: AYE MACKENZIE: AYE STAFFORD: AYE BREEZE: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
SETTLEMENT AGREEMENT
This Settlement Agreement ( "Agreement ") is entered into this day of
, 2009, by and between the City of Rohnert Park ( "City ") and Adrienne Stutrud
(collectively referred to as the "Parties ") and is based upon the following facts and
representations:
RECITALS
A. On September 26, 2005, Paul Stutrud ( "Stutrud ") filed a complaint against the
City in Sonoma County Superior Court (Case No. SCV- 237482) ( "Complaint ") challenging the
Citys sewer rates enacted on February 16, 2.005, which became effective April 1, 2005. Stutrud
appealed the trial court's sustaining of a demurrer to the Complaint and prevailed on appeal.
B. On February 16, 2007, Stutrud amended the Complaint ( "First Amended
Complaint" or "FAC "). The First Amended Complaint still challenged the sewer rates enacted
on February 16, 2005, but also challenged the City's sewer rates enacted on January 27, 2007,
which became effective March 15, 2007. In addition, on behalf of Stutrud, Plaintiff Stephen
Bosshard ( "Bosshard ") and a putative class, the First Amended Complaint sought: refunds,
damages, restitution, disgorgement and /or imposition of a constructive trust with prejudgment
interest ( "Refund Claim "); an injunction prohibiting the City from enforcing the City's current
sewer rates ( "Injunctive Relief Claim "); a judicial declaration regarding whether the City had
complied with article XIII D of the California Con$titution ('Declaratory Relief Claim "); and
Attorneys' Fees pursuant to Code of Civil Procedure section 1021.5 ( "Attorneys' Fees Claim "),
C. On June 4, 2007, the trial court ordered the allegations related to Bosshard and the
putative class to be stricken (collectively referred to as "Class Allegations "). In an unpublished
opinion, the First District Court of Appeal affirmed the trial court's order to strike the Class
Allegations.
D. On November 4, 2008, the City's voters approved Measure L, a voter initiative
that rolled back the sewer rates to the rates that were in effect as of January 1, 2006, thereby
mooting Stutrud's Declaratory Relief Claim and Injunctive Relief Claim. Measure L's sewer
rates became effective on December 14, 2008_
E. On June 30, 2009, Stutrud passed away. He died intestate.
F. As set forth in Exhibit A to this Agreement, Adrienne Stutrud, as Stutrud's
daughter, is the successor -in- interest to Stutrud ( "Daughter ").
G. On August 6, 2009, the parties attended a mediation in an effort to resolve a
dispute over the amount of attorneys' fee to which Stutrud's attorneys were entitled. Following
the mediation, the parties agreed to a sum of $39,000 and also agreed, without admitting or
denying any wrongdoing, to reimburse Stutrud for alleged sewer fee overcharges in the amount
of $610.
H.. The Parties desire to avoid costly and protracted litigation to resolve this matter,
and therefore, this Agreement is intended to resolve any and all claims that Stutrud and Daughter
may assert against the City relating to or arising out of the allegations in the Complaint and First
Amended Complaint by each party agreeing to the covenants and promises contained herein.
NOW, THEREFORE, in consideration of the mutual promises and the acts and payment
referenced herein, the parties hereto agree:
AGREEMENT
7 . Recitals. The Parties hereby incorporate by reference the foregoing recitals as
part of this Agreement.
2. Substitution of Plaintiff Within 10 days of the execution of this Agreement,
Daughter agrees to file an ex parte motion seeking to substitute Daughter as Plaintiff as
successor -in- interest to Stutrud, as set forth in the proposed order attached as Exhibit B.
("Order"). If Daughter either fails to file the motion seeking the Order or the Court does not
enter the Order or enters an order that is materially different than the Order, this Agreement
hereby terminates.
3. Pevment, Within 30 days of the Court ordering Daughter to be substituted in as
Plaintiff as Stutrud's successor -in- interest, the City agrees to mail a check via overnight delivery
made payable to KKBS Client -Trust Account c% Eric Benink, Krause Kalfayan Benink &:
Slavens, LLP ("Benink"), in the amount of thirty nine thousand, six hundred, ten dollars
($39,610.00) representing $39,000 in attorney's fees and $610 in alleged overcharges for
Stutrud.
4. Dismissal. Within 5 business days of City mailing a check via overnight delivery
as described in paragraph 3, Daughter and/or her attorneys shall dismiss the First Amended
Complaint with prejudice. All parties are to bear their own attorney's fees and costs except as
set forth in Paragraph 3.
5. Daughter's Release. Daughter, on her own behalf, on behalf of Stutrud and on
behalf of her attorneys, representatives, assigns and successors -in- interest, hereby releases and
forever discharges the City and its current and former officials, members, partners, officers,
employees, agents, attorneys, representatives, assigns, and successors -in- interest from any and
all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights,
debts, liabilities, obligations, disputes, controversies, payments, and costs, and attorneys' fees of
every kind and character, known or unknown, existing or contingent, latent or patent, relating to
any matter alleged in, arising from, or related to any allegations contained in the Complaint or
the FAC.
6. The City's Release. The City, on its own behalf and on behalf of its current and
former officials; members, partners, officers, employees, agents, attorneys, representatives,
assigns, and successors -in- interest, hereby releases and forever discharges Daughter, Stutrud and
her attorneys, representatives, assigns, and successors -in- interest from any and all claims, causes
of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities,
obligations, disputes, controversies, payments, costs, and attorneys' fees, of every kind and
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character, known or unknown, existing or contingent, latent or patent, relating to any matter
alleged in, arising from, or related to any allegations contained in the Complaint or the FAC.
7. General Release. Daughter and the City on behalf of themselves, their heirs,
predecessors, successors, and assigns covenant and agree that no one shall in any capacity,
throughout the world, hereafter institute, assert, or in any manner proceed upon, as against each
other for any liability, claim, litigation, mediation, arbitration, suit, damage, demand, obligation,
cause of action, debt, expense, or loss in connection with or related to any and all claims related
to or arising out of the allegations in the Complaint or First Amended Complaint from which the
latter has been released pursuant to the terms of this Agreement.
8. Waiver of California Civil Code Section 1542. Daughter, on the one part, and the
City on the other, on behalf of themselves, their attorneys, heirs, predecessors, successors, and
assigns, expressly waive the benefit of Section 1342 of the California Civil Code with respect to
all claims that in any way arise from or relate to any allegation asserted in the Complaint or FAC
or any claim that could have been asserted in the Complaint or FAC. Furthermore, Daughter and
the City, on behalf of themselves, their heirs, predecessors, successors, and assigns, understand
and acknowledge the significance and consequences of their specific waivers of Section 1542 of
the California Civil Code which reads as follows:
"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."
9. Full Authority. The Parties represent and warrant that each has the full right, power,
legal capacity, and authority to enter into, and perform the obligations hereunder and that such
obligations shall be binding upon each of them without the requirement of the approval or
consent of any other person or entity in connection herewith.
14. No Admission of Liability. Nothing herein shall be construed as an admission on the part
of any of the Parties of any claims, demands, causes of action, obligations, damages, or liabilities
asserted by any other party.
11. Attorn ' Fees and Costs. In the event that suit is brought by one party against another
to declare rights under, or to enforce any of the provisions of this Agreement, the prevailing
party or parties shall be entitled to recover their attorneys' fees and costs actually incurred.
12. Time of the Essence. Time is of the essence in this Agreement and in all terms,
provisions, covenants, and conditions hereof.
13. Severability. If any word, phrase, clause, sentence, provision, or paragraph of this
Agreement is or shall be held invalid or unlawful for any reason, the same shall be deemed
severed from the remainder hereof, and stricken therefrom, and shall in no way affect or impair
the validity of this Agreement or any other portion thereof, and this Agreement shall otherwise
remain in full force and effect.
14. Miscellaneous.
(a) Applicable Law.
This Agreement shall, in all respects, be governed by the laws of the State of
California applicable to agreements executed and to be wholly performed within
California.
(b) Further Assurances.
The parties shall execute and deliver any and all additional papers, documents, or
other assurances and shall do any and all acts and things reasonably necessary in
connection with the performance of the obligations hereunder to carry out the intent of
the parties hereto.
(C) $uCCes5Ois and Assigns.
All of the terms and provisions contained herein shall inure to the benefit of and
shall be binding upon the Parties hereto and/or upon their heirs, administrators,
representatives , executors, successors, transferees, assigns, and /or business entities
owned in whole or part by each of the Parties.
(d) Entire Agreement.
This Agreement constitutes the entire understanding and agreement with respect
to the subject matter and any and all prior agreements, understandings, and
representations with respect to its subject matter are hereby terminated and canceled in
their entirety and are of no further force or effect.
(e) Nonwaiver.
No waiver of a breach of any provision of this Agreement shall constitute a
waiver of any preceding or succeeding breach of the same or any other provision hereof
(f) Parties in Interest.
Nothing in this Agreement, whether express or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any persons other than the
parties and their respective successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligations or liability of any third persons to any
party to this Agreement, nor shall any provision give any third person any right of
subordination or action over or against any party to this Agreement.
(g) Joint and Several Obligations.
The obligations of the parties hereto are joint and several.
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M Legal Representation.
The Parties represent and warrant that each has been fully advised by its attorneys
concerning its rights and has been further fully advised by its attorneys as to the terms of
this Agreement.
(i) Counterparts.
This Agreement may be executed in one or more counterparts. All counterparts
so executed shall constitute one contract, binding on all Parties, even though all Parties
are not signatory to the same counterpart.
(k) Faxed/Pdf Signatures.
Delivery of a facsimile or pdf copy of a signed counterpart of this Agreement
shall constitute delivery of a valid signature, equivalent for all purposes to delivery of the
original signed counterpart.
This Agreement consisting of five (S) pages, is made and entered into on and as of the
latest date of execution thereof by the parties and is effective as of that date ( "Effective Date ").
(SIGNATURES FOLLOW ON NEXT PAGE]
Dated: �� 2009
—v
Dated: , 2009
APPROVED AS TO FORM:
By: I� <`
Adrienne Stutrud
CITY OF ROHNERT PARK
B y:
Daniel Schwarz, InterimCity Manager
Dated: , 2009 McDONOUGH HOLLAND & ALLEN PC
By:
Michelle Marc etta Kenyon, City Attorney
Dated: .2009
By:
Attorneys for Paui Stumud
and Adrienne Stutrud
Co
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John F. Hudson, Esq., CSB 107623
399 Bonnie Avenue
Rohnert Park, CA 94928
Tel: (707) 795 -7132
Eric J. Benink, Esq., CSB 187434
KRAUSE KALFAYAN BENINK & SLAVENS. LLP
625 Broadway, Suite 635
San Diego, CA 92101
Tel: (619) 232 -0331
Fax: (619) 232 -4019
Attorneys for Plaintiffs PAUL D. STUTRUD and STEPHEN N. BOSSHARD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SONOMA
PAUL D. STUTRUD, and STEPHEN N.
BOSSHARD, individually and on behalfof all
others similarly situated,
Plaintiffs,
V5.
THE CITY OF ROHNERT PARK, a
municipal corporation, and DOES I through
10, inclusivc,
Defendants.
Case No. 237482
DECLARATION OF ADRIENNE STUTRUD
PURSUANT TO C.C.P SECTION 377.32.
1, Adrienne Stutrud, am not a party to the above - entitled action. 1 have personal knowledge
of the facts stated below and if called upon, I could and would testify competently thereto.
I . The Plaintiff in this action, Paul D. Stutrud (the "decedent ") was my father.
2. The decedent died on June 30, 2009 at Santa Rosa Memorial Hospital. Attached
hereto as Exhibit A is a true and correct copy of the decedent's death certificate.
3. No proceeding is now pending in California for administration of the decedent's
estate.
4. 1 am the decedent's successor in interest, as defined in Section 377.11 of the
California Code of Civil Procedure, and succeed to the decedent's interest in this action or
13oClAMOC n of Adrienne Stutrud 1
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proceedings.
5. No other person has a superior right to commence the action or proceeding or to be
substituted for the decedent in the pending action or proceeding.
I declare under penalty ofperjury under the laws of the State of California that the foregoing
is true and correct.
Executed on October -3.2009 atI
DATED:
Adrienne Stutrud
Dedlaradon nrAdriwncS(utrud
2
wwromloo TI noa
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SUPERIOR COURT OF T:
FOR THE COUI
PAUL D. STUTRUD, and STEPHEN N. '
BOSSHAR,D, individually and on behalfofall
others similarly situated,
Plaintiff,
VS.
THE CITY OF ROHNERT PARK, a
municipal corporation, and DOES I through
10, inclusive;
Defendants.
3E STATE OF CALIFORNIA
qTY OF SONOMA
Case No. 237482
i
[PROPOSED] ORDER APPOINTING
ADRIENNE STUTRUD AS SUCCESSOR
IN INTEREST PURSUANT TO C.C.P.
SECTIONS 377.32 AND 377.33
Date:
Time:
Dept. 17
i
Hon. Robert S. Boyd
i
Action Filed: September 26, 2005
This matter came before the court upon an ex parte application on 2009. Having
considered the matter, and good cause appearing,
IT IS HEREBY ORDERED THAT:
1. Adrienne Stutrud be appointed as Decedent Paul Stutrud's successor in interest to continue
the pending action, pursuant to Cal. Code Civ. Proc. Sections 377.32 and 377.33.
IT IS SO ORDERED.
[PmpusedlOrder Appointing Adrienne Siutrud as successor in Interest
Hon. Robert S. Boyd
Case No, 337482 I