2008/02/26 City Council Resolution 2008-31RESOLUTION NO. 2008-31
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING A SETTLEMENT AGREEMENT
AND RELEASE BETWEEN O.W.L. FOUNDATION AND CITY OF ROHNERT
PARK RELATING TO O. W.L. FOUNDATION V. CITY OF ROHNERT PARK
(Sonoma County Superior Court No. SCV- 241090)
WHEREAS, the City Council wishes to enter into a settlement agreement and
release with the O.W.L. Foundation regarding Sonoma County Superior Court Case No.
SCV- 241090, O. W. L. Foundation v. City of Rohnert Park, et al.
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 and Release.
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 26th day of February, 2008.
ATTEST:
City Clerk
CITY OF ROHNERT PARK
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BREEZE: AYE SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE MACKENZIE: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ( "Agreement ") is made this 26 th day of
February, 2008 ( "Effective Date "), by and between the City of Rohnert Park ( "City ") and
the O.W.L. Foundation ( "O.W.L. ").
RECITALS
A. On July 2, 2007, O.W.L. filed a Verified Petition for Writ of Mandate and
Complaint for Declaratory and Injunctive Relief against the City (O. W.L. Foundation v. City of
Rohnert Park, et al.,. Case No. SCV 241090), seeking to compel the City to prepare and adopt a
valid 2005 Urban Water Management Plan ( "UWMP "), which was due on December 31, 2005,
as well as attorneys' fees and costs of suit (the "UWMP Action ").
B. On August 28, 2007, the City adopted a 2005 UWMP (by Resolution No. 2007-
143). Although the City had worked to prepare the UWMP since it assumed responsibility from
the Sonoma County Water Agency in late 2006, O.W.L. contends its lawsuit prompted the City
to expedite its adoption of the UWMP.
C. Following the City's adoption of its 2005 UWMP, the City contended that
O.W.L.'s lawsuit was moot. O.W.L. contended otherwise, and sought adoption of a valid 2005
UWMP as. well as costs and attorney's fees.
D. The City contends that its 2005 UWMP is valid and adequate, that the statute of
limitations on any challenges to the 2005 UWMP has run, and that it has no legal
obligation to pay any costs or attorneys' fees. O.W.L. contends otherwise.
E. The parties to this Agreement recognize that there is significant time, expense and
risk involved in resolving the UWMP Action between the City and O.W.L. through litigation.
The parties acknowledge that the money paid and other valuable consideration for settlement is
solely for the purpose of preventing further involvement in litigation, thereby fully and finally
resolving all challenges to the adoption and validity of the City's 2005 UWMP and ending the
UWMP Action.
AGREEMENT
NOW THEREFORE, in consideration of the above recitals, which are an essential part of
the Agreement, and for other good and valuable consideration, the receipt and adequacy of
which is acknowledged, it is hereby agreed as follows:
1. The above recitals are incorporated herein.
2. Settlement.
a. _ Dismissal of the UWMP Action. O.W.L. shall file with the Sonoma
County Superior Court a request for dismissal with prejudice of its UWMP Action no later than
five (5) days after the Effective Date of this Agreement.
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b. Attorneys' Fees and Costs of the UWMP Action. Within thirty (30) days
of dismissal with prejudice -of the UWMP Action, the City shall pay and O.W.L. shall accept the
sum of four thousand, two hundred and fifty dollars ($4,250) as full, final and complete
settlement of all claims for attorneys' fees and costs, which are based upon, related to, arising out
ot•; or in connection with the UWMP Action.
3. Mutual Release. Except for the obligations specified, the City and O.W.L. hereby .
release and forever discharge each other, together with their employees, officers, agents,
representatives, trustees, directors, partners, stockholders, attorneys, successors, assigns, heirs,
personal representatives and executors, and all persons, firms, associations, co- partners,
coventurers, insurers, contractors, engineers, subcontractors, subsidiaries, parents, affiliates, or
corporations connected.therewith, and each of them from any and all claims, debts, liabilities,
demands, obligations, defenses, costs, expenses, attorneys' fees, actions, and causes of actions of
every nature, character, and description whether known or unknown, directly or indirectly arising
out of any matter, .fact, and/or allegation related to the UWMP, including, without limitation (i)
this UWMP Action, (ii) any claims relating to the adoption or validity of the City's 2005 UWMP,
and (iii) those claims identified in paragraph 2 above.
4. Waiver of California Civil Code Section 1542. The parties to the releases in
paragraph 3 above hereby acknowledge that they are aware of the provisions of section 1542 of
the Civil Code, which provides 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.
. Having been so informed, the parties to the releases in paragraph 3 above hereby elect to
and do waive the provisions and benefits of Civil Code section 1542, effective upon the
execution of this Agreement.
5. 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,
defenses or liabilities asserted by any other parry.
6. Attomeys' Fees and Costs. Each party to this Agreement will bear its own
attorneys' fees and costs incurred in the negotiation, review and execution of this Agreement.
7. Authorization to Execute. Each party represents that the individual signing this
Agreement is authorized to bind the party on whose behalf he or she signs.
8. Entire Agreement. As to the matters set forth herein, this Agreement is the entire,
integrated agreement and understanding of the parties.
9. Modification. This Agreement may be modified only by a writing signed by the
parties.
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10. Severability. If any part of this Agreement is found to be void, invalid or
unenforceable, the remainder shall remain in full force'and effect and shall be interpreted to carry
out the parties' intent with respect to their obligations and rights.
11. Drafting of A rgreement. The drafting and the negotiation of this Agreement has
been participated in by each of the parties or their counsel and, for all purposes, this Agreement
shall be deemed to have been drafted jointly by all parties.
12. Successors and Representatives. This Agreement shall be binding on and shall
inure to the benefit of the successors and assigns of each party.
13. Informed Consent. Each party declares that prior to the execution of this .
Agreement, it and/or its duly authorized representatives have apprised themselves of sufficient
relevant data, either through attorneys, experts or other sources of their own selection, in order to
intelligently exercise their judgment in deciding whether to execute, and in deciding the contents
of, this Agreement. Each party states that this Agreement is entered into freely and voluntarily,
upon the advice and with the approval of its counsel.
14. Applicable Law. This Agreement shall be interpreted in accordance with
California law.
15. Execution in Counterparts. This Agreement may be executed in counterparts, and
fax copies shall constitute good evidence of such execution.
IN WITNESS WHEREOF, this Agreement is executed and agreed to by the following:
CITY OF ROHNERT PARK
J ke M ckenzie
Mayor
Per Resolution No. 2008 -31 adopted by
the Rohnert Park City Council at its
meeting on Febj� uafy 26, 2008
City Attorney
A.ftest
M I -, 0
KIM
APP OVED AS TO FORM:
Stephan .. Volker
Attorney for. O.W.L.
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