2006/07/11 City Council Resolution (4)RESOLUTION NO. 2006 -193
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING A SETTLEMENT AGREEMENT
AND MUTUAL RELEASE OF CLAIMS BETWEEN NORTHERN CALIFORNIA
RIVER WATCH (NCRW), a Non - profit, Public Benefit Corporation,
AND THE CITY OF ROHNERT PARK, a Municipal Corporation
BE IT RESOLVED by the City Council of the City of Rohnert Park that that certain
Settlement Agreement and Mutual Release of Claims by and between Northern California River
Watch, C NCRW '), a 501(c)(3) non - profit, public benefit corporation, and the City of Rohnert
Park, a municipal corporation, be and the same is hereby accepted and approved in settlement of
the litigation entitled Northern California River Watch v. City of Rohnert Park.
BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to
execute this agreement in substantially similar form to the attached agreement for and on behalf of
the City of Rohnert Park.
DULY AND REGULARLY ADOPTED this 11 b day of July, 2006.
CITY OF ROHNERT PA --
Mayor Tim Smith
- CERTIFIED -
BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIDAK- MARTINEZ: AYE SMITH: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
JH- S:05 -f
SETTLEMENT AGREEMENT
AND MUTUAL RELEASE OF CLAIMS
This Settlement Agreement and Mutual Release of Claims ( "Agreement ") is entered into
between Northern California River Watch ( "NCRW ") and the City of Rohnert Park ( "City ")
(collectively, the "Parties ").
RECITALS
A. NCRW is a 501(c)(3) non - profit, public benefit corporation organized under the
laws of the State of California.
B. City is a municipality organized under the laws of the State of California. City
operates a wastewater collection system ( "Collection System ") that serves the its residents and
businesses. The Collection System transports wastewater to the Laguna Subregional Wastewater
Collection,, Treatment, Conveyance, Reuse, and Disposal Facilities operated by the City of Santa
Rosa.
C. On June 6, 2005 NCRW provided City with a Notice of Violations and Intent to
File Suit ( "Notice ") under Section 505 of the Federal Water Pollution Control Act (the "Act" or
the "Clean Water Act "), 33 U.S.C. § 1251 et seq.
D. On November 10, 2005 NCRW provided the City with a Supplemental Notice of
Violations and Intent to File Suit Under the Act ( "Supplemental Notice "):
E. NCRW and the City, through their authorized representatives, attended a
mediation for this matter on May 15, 2006.
F. At the conclusion of the mediation, NCRW's and the City's representatives
executed a "Stipulation for Settlement" and "River, Watch v. City of Rohnert Park Term Sheet ".
The purpose of this Agreement is to memorialize in more detail the terms of the settlement, but
to be consistent with those May 15, 2006 documents.
G. NCRW and the City, through their authorized representatives and without either
adjudication of NCRW's claims or the City's admission of any alleged violation or other
wrongdoing, have chosen to resolve in full NCRW's allegations in the Notice and Supplemental
Notice through settlement and to avoid the cost of litigation.
H. NCRW and the City have agreed that it is in their mutual interest to enter into this
Agreement setting forth the terms and conditions to resolve NCRW's allegations set forth in the
Notice and Supplemental Notice.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, NCRW and the City hereby agree as follows:
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1. EFFECTIVE DATE. The Term "Effective Date," as used in this Agreement, shall
mean the date the Agreement has been executed by both parties.
2. MEDIATION OUTCOME. The "Stipulation for Settlement" and "River Watch v. City
of Rohnert Park Term Sheet" from the May 15, 2006 mediation are attached hereto as Exhibit A
and incorporated by reference as though fully set forth herein. The Parties intend that the
Stipulation for Settlement, the Term Sheet, and this Agreement shall be read and interpreted
together as one document.
3. COMMITMENTS TO NCRW.
3.1 Supplemental Environmental Pr9 ect. City agrees to include a water quality study
as a component of the City's anticipated Creek Restoration Plan. One element of the water
quality study shall be a reasonably comprehensive and technically competent analysis of human
markers to determine if human wastewater is present in waters of selected surface watercourses
in Rohnert Park. City shall use its best efforts to complete this analysis within 3 years of the
Effective Date. City agrees to utilize the results of the water quality study as a factor in
determining future improvements to and maintenance of the Collection System. City shall invite
Michael Johnson, a researcher affiliated with the University of California at Davis, to submit a
proposal to perform the water quality study. City shall provide River Watch the opportunity to
review and comment within 30 days upon the water quality study proposal, and shall respond in
a like period of 30 days to any comments or recommendations submitted by River Watch, prior
to final award of the proposal to perform the study.
3.2 Protocols for Recording Collection System Overflows. City will review and
improve overflow reporting in compliance with the new State Water Resources Control Board
Wastewater Discharge Requirements, Order 2006 -0003, dated May 2, 2006 ( "WDR "). Reports
will be available to the public upon request to the City Clerk and in the state database developed
in connection with the WDR requirements. City shall review and improve reporting in
accordance with the schedule in the WDR.
3.3 Mapping of Collection System. City will prepare and.provide its GIS map of the
Collection System within 6 months of the Effective Date. The map will show sewer lines,
creeks, parks and schools, and soil type information from the Soil Conservation Service or
similar sources. The City shall use the map as a factor in determining the locations for its water
quality study referred to in Section 3.1 above.
3.4 Recommended Lateral Replacement Ordinance. Within 12 months of the
Effective Date, City public works staff will prepare and submit for the City Council's
consideration a lateral replacement ordinance requiring an inspection of private sewer laterals
prior to the sale of property. The draft ordinance may include a provision requiring repair of
inspected laterals, if and as necessary. City staffs presentation will include a good faith,
balanced report on the benefits of such a program and will not recommend against approval.
Staff shall include in its presentation the recommendations of V &A Consulting Engineers in the
Inflow & Infiltration Study commissioned by the City concerning such an ordinance, and
information about, and examples of, the lateral ordinances of other cities. City shall provide
River Watch the opportunity to review and comment within 30 days upon City staffs report and
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934032v2 80078/0034
proposed ordinance, and shall respond in a like period of 30 days to River Watch's comments or
recommendations, prior to submitting the report and proposed ordinance to the City Council.
City shall provide notice to River Watch in the manner set forth in Section 7.4 below 7 days
prior to any scheduled City Council meeting where this item will be considered.
3.5 Video Inspect Select Sections of the Collection System. Within 5 years, City will
visually document with closed circuit television ( "CCTV "), the following portions of the
Collection System: (a) those portions that either cross creeks, streams, or waters of the United
States, or are within 200 feet of such creeks, streams, or waters; and (b) those portions that are
within 100 feet of sites listed as "Open" using the Site /Facility Finder Tool on the California
State Water Resources Control Board GeoTracker website.
3.6 Attorneys' Fees. City shall pay NCRW the sum of $40,000 within 15 days of the
Effective Date. The City shall issue a single check in that amount payable to "Northern
California River Watch," and this shall constitute full payment for all costs, including attorney's
fees, incurred by NCRW in this matter, up to and including the Effective Date of this
Agreement.
3.7 Mediation Costs. City shall pay 66 % of the costs of mediation, and NCRW shall
pay 34% of the costs of mediation. The parties will pay those costs directly to JAMS.
3.8 Press Release. NCRW and City agree jointly to prepare any press release
associated with this Agreement, within 10 days of the Effective Date. The Parties will make no
public statement about the settlement, or the substance of this matter, except in that joint press
release.
4. NO ADMISSION OR FINDING. Neither this Agreement nor any payment pursuant to
the 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 the Agreement may constitute evidence in actions seeking compliance with this Agreement.
5. MUTUAL RELEASE OF LIABILITY. In consideration of the matters set forth in this
Agreement, and except as otherwise provided herein, the Parties hereby forever and fully
release each other and their respective successors, assigns, officers, agents, employees, and all
persons, firms and corporations having an interest in them, from any and all claims and demands
of any kinds, nature, or description whatsoever, and from any and all liabilities, damages,
injuries, actions or causes of action, either at law or in equity, which the Parties have against
each other arising from NCRW's allegations and claims as set forth in the Notice and
Supplemental Notice.
6. COVENANT NOT TO SUE. For the period beginning on the Effective Date and
ending seven years after the Effective Date, NCRW covenants not to sue the City for any matter
regarding the City's compliance with the Act, the WDR, or other matters relating to the
Collection System. This covenant is binding on NCRW, its officers, executive staff, members of
its governing board, and any organization under the control of NCRW, its officers, executive
staff, or members of its governing board. NCRW further agrees that NCRW will not support
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other lawsuits, by providing financial assistance, personnel time or other affirmative actions,
against City that may be proposed by other groups or individuals who would challenge the City's
compliance with the Act, the WDR, or other matters relating to the Collection System.
7. GENERAL PROVISIONS.
7.1 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 Act,
or specifically herein.
7.2 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.
7.3 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.
7.4 Correspondence. All notices required herein or any other correspondence
pertaining to this Agreement shall be sent by regular, certified, or overnight mail as follows to:
NCRW: Jack Silver, Esq.
Law Office of Jack Silver
PO Box 5469
Santa Rosa, CA 95402 -5469
City: Michelle Marchetta Kenyon, Esq.
City Attorney for the City of Rohnert Park
McDonough Holland & Allen PC
1901 Harrison Street, 9th Floor
Oakland, CA 94612 -3501
Notifications of communications shall be deemed submitted on the date that they are
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. In addition, the Parties may agree to transmit documents electronically or by
facsimile.
7.5 Counterparts. This Agreement may be executed in any number of counterparts,
all of which together shall constitute one original document. Telecopy, PDF, and /or facsimile
copies of original signature shall be deemed to be originally executed counterparts of this
Agreement.
7.6 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.
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7.7 Full Settlement. This Agreement constitutes a full and final settlement of this
matter. It is expressly understood and agreed that the Agreement has been freely and voluntarily
entered into by the Parties with and upon advice of counsel.
7.8 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 except
as provided in Section 2 expressly supersedes any and all prior oral or written agreements
covenants, representations and warranties (express or implied) concerning the subject matter of
this Agreement.
7.9 Negotiated Agreement. The Parties have negotiated this Agreement, and the
doctrine of contra proferentum does not apply.
7.10 Authority. The undersigned representatives for NCRW and City each certify that
he /she is fully authorized by the party whom he /she represents to enter into the terms and
conditions of this Agreement.
The Parties hereby enter into this Agreement.
�pHNe Rr (,4$,t
CITY:
Date: 12006
Cit U1 L! Park +s
CA t AOR
Mayor
A oved as or ^
1 '
Per Resolution No. 2006 -193 adopted
by the City Council o July 1 , 2006
Attest:
ichelle Marche to Ken on, Ci ome
JJudy Hauf Ci Cle k
NCRW:
Date: , 2006
NO THERN CALF R RIVER WATCH
C
-�
P e ' ent o the Board o Dire or
Approved as to Form:
/0 -
Jack lver, Esq., attorne y for NCRW
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