HomeMy WebLinkAboutCalifornia River Watch 2020-05-19COU No. 1920-252
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement"), effective as of the last date of
execution below ("Effective Date"), is made by and between California River Watch, a
nonprofit corporation, on behalf of itself and its members ("CRW"), and the City of Ukiah
("City"), a general law California municipal corporation. CRW and the City are sometimes
hereinafter each referred to as "Party," or collectively as the "Parties."
RECITALS
1. CRW represents that it is an Internal Revenue Code § 501(c)(3) nonprofit, public
benefit corporation organized under the laws of the State of California, dedicated to
protecting, enhancing, and helping to restore the surface and ground waters of
California, including coastal waters, rivers, creeks, streams, wetlands, vernal pools,
aquifers and associated environs, biota, flora and fauna, and to educating the public
concerning environmental issues associated with these environs.
2. The City, organized under the laws of the State of California, owns and operates the City
of Ukiah Wastewater Treatment Plant, including associated storage ponds for both sewage
treatment and recycled water ("Facility") and the portion of the associated sewer
collection system ("the City's sewer collection system") which is within the City limits,
but outside the boundaries of the Ukiah Valley Sanitation District ("UVSD"), and
currently manages the associated sewer collection system within the UVSD ("the
District's sewer collection system") for the purpose of collecting and conveying
wastewater from residential, commercial, and industrial sources, subject to NPDES
Permit No. CA0022888 ("NPDES Permit") under the federal Clean Water Act ("CWA").
The NPDES Permit requires the City to comply with the Statewide General Waste
Discharge Requirements for Sanitary Sewer Systems ("Statewide WDR").
3. Under the Operating Agreement between the City and the District, the District has the
right, subject to specified notice and procedures, to assume the operation and maintenance
of the District's wastewater collection system. The City and the District each must
approve and pay 100% of the cost of capital improvements to their respective wastewater
collection systems, unless either party claims that a capital improvement to its collection
system provides a benefit to the other party in which event the parties must negotiate an
agreement to share the cost of that improvement or failing agreement, either party may
initiate arbitration to resolve the dispute. The District is not a party to this Agreement.
Accordingly, the District is not bound by this Agreement. The City will no longer manage
the District wastewater collection system, if the District assumes its operation and
maintenance which will exclude the District wastewater collection system from the
defmition of Collection System provided in this Agreement.
4. On July 8, 2019, CRW served the City with a 60 -day Notice of Violations and Intent
to File Suit ("CWA Notice") alleging various violations of the CWA and the NPDES
Permit. A true and correct copy of the CWA Notice is attached to this Agreement as
Exhibit A.
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5. The Parties have expended effort and resources in investigating and evaluating
allegations and claims set forth in the CWA Notice, including the exchange of
information regarding the City's sewer collection system, as well as engaging in a
negotiation and technical dialogue regarding settlement.
6. The Parties now wish to resolve and settle all disputes, obligations, and purported or
actual claims or causes of action, which may now exist by and between CRW and the
City, including without limitation any disputes, obligations, claims and/or causes of
action that were or could have been asserted in or pursuant to the CWA Notice.
NOW, THEREFORE, in consideration of the execution of this Agreement and the
releases, satisfactions and promises made herein, it is hereby agreed upon by the Parties as
follows:
TERMS AND CONDITIONS
1. Parties Bound by This Agreement and Length of Agreement. This Agreement, and each
of its provisions, including all representations, warranties, and promises contained herein, binds
and inures to the benefit of CRW and the City, and each of their respective assigns, present and
future affiliates, parents, subsidiaries, predecessors and successors in interest whether by merger,
consolidation, or otherwise, as well as their respective representatives, agents, and administrators,
past, present, and future. The "Termination Date" of this Agreement is seven (7) years from the
Effective Date.
2. Actions by the City. In exchange for the delivery, execution, and performance of this
Agreement and of the Release by CRW as provided herein, the City shall perform the below
specified projects. The City reserves the right, in its sole discretion, to determine (i) which persons
shall perform any work described herein, including contractors, and (ii) the manner to implement
such work, subject to such review and approval, as is required by law, by the Regional Water
Quality Control Board ("RWQCB") (or such other regulatory agency as may, from time to time,
exercise jurisdiction with respect to environmental matters under the NPDES Permit).
2.1. Sanitary Sewer Collection System Investigation and Repair
2.1.a. Definitions
i. Collection System: A system of pipes, lift/pump stations,
manholes or other assets owned or managed by the City used
to collect and convey wastewater to the Facility. Recital
Numbers 2 and 3 are incorporated herein.
ii. Condition Assessment: A report that comprises inspection,
rating, and evaluation of the existing condition of the Collection
System. Inspection is based upon closed circuit television
("CCTV") inspections of sewer lines and inspection of
lift/pump stations and manholes for defects. After CCTV
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inspection occurs, pipe conditions are assigned a grade such as
the Pipeline Assessment and Certification Program ("PACP")
rating system, developed by the National Association of Sewer
Service Companies.
iii. Condition Assessment Cycle: A Condition Assessment of the
entire Collection System requiring each sewer line to be
CCTV'd every ten (10) years, but not requiring all sewer lines
to be on the same CCTV schedule.
iv. Surface Water Condition Assessment: A Condition
Assessment of sewer lines and assets (e.g. manholes and
lift/pump stations) in the Collection System located within
two hundred (200) feet of a Surface Water.
v. Significantly Defective: A sewer pipe is considered
Significantly Defective if its condition receives a Structural
or Operation and Maintenance grade of 4 or 5 based on the
PACP rating system or an equivalent rating system
developed by the City. 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
4 - Significant
3 - Moderate
2 - Minor to moderate
1 - Minor.
vi. Surface Waters: Bodies of water which include, but are not
limited to all local creeks, lakes, and bays, named on the
United States Geological Service map for the City area.
2.1.b. The City completed a CCTV inspection of the entire City and District
wastewater collection systems in 2011. As reported in Sections 4.3.1.2
("Condition Assessment"), 4.3.2 ("Asset Management") and 4.3.3
("R&R Capital Improvement Plan") of the City's 2014 Sewer
System Maintenance Plan ("SSMP"), the City states that condition
assessment of the collection system using NASSCO defect
categories and PACP rating procedures is not planned until
completion of the next CCTV inspection of the system. At that time,
ratings will be incorporated into the City's GIS System database
where results can be evaluated to determine rehabilitation and
replacement needs, and recommendations made for inclusion in a
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sewer system Capital Improvement Plan ("CIP") and for purposes of
annual budgeting. In updating its SSMP in 2020 in compliance with
Section 2.2.b, the City shall establish a realistic deadline for
completing the CCTV inspection of the City and District wastewater
collection system. At that time, ratings shall be incorporated into the
City's GIS System database where results can be evaluated to
determine rehabilitation and replacement needs, and
recommendations made for inclusion in annual budgeting. The City
shall use CCTV software that is compatible with NASSCO forms
and procedures or comparable industry standard forms and
procedures. This link between programs will provide the City with a
smooth transition to NASSCO or comparable industry standards and
reporting capabilities. Pipes and manholes will be defined with a
"good, moderate, and poor" or a numerical rating system. The
scoring information will be linked to the GIS System database and
used as a tool to prioritize the City's rehabilitation and replacement
projects. The 2020 SSMP shall include realistic deadlines for
completing this work and preparing a proposed CIP for
consideration and approval of the City Council and the District
Board of Directors, not to exceed five (5) years after the Effective
Date.
2.1.c. In 2019 and 2020, the City rebuilt two (the City's and one of the
District's two) pump/lift stations, which are part of the City and
District waste collection systems. It shall continue to monitor and
repair or replace as needed the remaining pump/lift station.
2.2. Collection System Maintenance and Sewer System Overflow (SSO)
Response
2.2.a. Definitions:
1. Sanitary Sewer Overflow ("SSO"): Any overflow, spill, release,
discharge or diversion of untreated or partially treated
wastewater from the Collection System.
2 Collection System Inundation: Any weather-related or other
event which causes a manhole to become either submerged by
more than two (2) inches or submerged for more than twenty-
four (24) consecutive hours and which results in an SSO.
2.2.b. In calendar year 2020, the City shall comply with its legal obligation to
update and have certified its certified 2014 .SSMP which shall be
publicly retrievable through the State's CIWQS system or the City's
website and include the relevant terms of this Agreement. The City's
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SSMP shall be kept current and properly certified. All documents
relating to the SSMP shall be provided on the City's website.
2.2.c. The City shall also develop and implement an adequate spill response
training and sampling program to determine the nature and impact of
all SSOs. Cleanup and disinfection procedures shall be set forth in the
certified SSMP. The City shall include legally required sampling methods
which may include the following:
i. Sampling for ammonia and appropriate bacterial indicators for
any SSO that, in the professional and documented opinion of the
City, may pose a risk to health or the environment;
ii. The City shall post and maintain appropriate public notification
signs and place barricades to keep vehicle and pedestrian traffic
away from contact with spilled sewage or sewage otherwise
detected by City in public rights of way after flood events until
the City's has abated the contamination;
iii. The City shall, after an initial response to the spill to protect
public health, safety, and the environment, as to spills that reach
or threaten to reach Surface Waters proceed to collect water
quality samples as soon as is reasonably possible after discovery
of the SSO event;
iv. In the event an SSO that, in the professional and documented
opinion of the City, may pose a risk to health or the environment,
reaches Surface Waters, the City shall collect and test samples
from three (3) locations - the point of discharge, upstream of the
point of discharge, and downstream from the point of discharge.
Constituents tested for shall include ammonia and appropriate
bacterial indicators selected by the City. Water quality sampling
results shall be reported in an appropriate category on the CIWQS
reporting form or as required by the State Water Resources
Control Board. Any requirements under this provision that
conflict with the sampling or testing requirements by a regulatory
agency (e.g., sampling location, frequency, parameters analyzed),
either currently in effect or adopted in the future, shall cease to be
in effect under this Agreement. The absence of sampling or
testing requirements by a regulatory agency shall not be
considered a conflict with regulatory agency requirements;
v. In the event an SSO that, in the professional and documented
opinion of the City, may pose a risk to health or the environment,
is discharged to land, the City shall sample for appropriate
indicators post -cleanup of the SSO to determine that potentially
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infectious material has been removed.
2.2.d. The City shall create a link from the City's website to the State's CIWQS
SSO Public Reports website and shall publicize this new link on its
website to its customers and members of the public. Additionally, the City
shall publicize on its website a telephone number or numbers available 24 -
hours each day, 7 days per week that members of the public can use to
report an SSO or other condition of the sewer system they believe requires
an immediate response..
2.3. Chemical Root Control. Within sixty (60) days after the Effective Date of this
Agreement, the City will affirm in an adopted policy that it has not for many
years and will not use herbicides or other chemicals in its root management
program.
2.4. Receiving Water Compliance. The City's NPDES Permit lists numerous
receiving water limitations with regard to the City's discharges to receiving
waters. Beginning within three (3) months after the Effective Date of this
Agreement, the City shall include in its eSMRs photographs evidencing its on-
going compliance with each limitation in its NPDES Permit for each discharge
event.
2.5. Effluent Limitation Compliance. The City shall comply with the required tasks
and schedules specified in its current Time Schedule Order ("TSO") or any
adopted modification thereof, to achieve compliance with the effluent limitations
set forth in its NPDES Permit.
2.6. Pond Monitoring. If accommodated by CIWQS, the City will post on the State's
CIWQS each month the total of wastewater discharged to its percolation ponds
and the mass of each constituent that has monitoring requirements specified in the
City's NPDES Permit.
3. Attorneys' Costs and Fees. Within ten (10) calendar days after the Effective Date
of this Agreement, the City shall pay CRW the sum of Thirty Thousand Dollars ($30,000).
Payment shall be made to CRW in the form of a single check payable to "California River
Watch" and mailed to the Law Office of Jack Silver, 708 Gravenstein Highway North, #
407, Sebastopol, CA 95472. Said payment shall constitute full and complete satisfaction of
all costs and attorneys' fees incurred by CRW that have been or could have been claimed in
connection with this matter up to and including the Effective Date of this Agreement, and
for CRW's expert and attorneys' fees and costs for monitoring and enforcing the City's
compliance with the ongoing obligations under this Agreement up to and including the
Termination Date.
4. Release. It is the intent of the Parties that the execution and delivery of this
Agreement constitutes a full and complete satisfaction of all rights, claims and demands by
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CRW against the City with respect to any and all allegations or claims made in the CWA
Notice or based on any other violation of the CWA or any other state or federal law or
regulation applicable to the Collection System or Facility ("Released Claims") up to the
Effective Date of this Agreement. With regard to the Collection System and the Facility
CRW on behalf of itself and any and all of its agents, representatives, successors, members,
and assigns, except as otherwise provided for herein, does hereby absolutely, fully and
forever release, relieve, remise and discharge the City and UVSD and their past and present
employees, officers, directors, attorneys, and the predecessors, successors, and assigns of any
of them, from all causes of actions, claims, damages, demands, actions, attorneys' fees, costs
of suit, and liabilities of every kind or nature whatsoever, arising out of the Released Claims
asserted or which could have been asserted in the CWA Notice, in subsequent negotiations
with the City concerning the City's operation and ownership of the Collection System and
the Facility or by any other means. The release provided for herein shall be valid and
effective whether the claims, causes of action, or liability hereby released (i) was known or
unknown, suspected or unsuspected, (ii) was based in contract, tort, statute, or otherwise, or
(iii) arise at law or in equity. The release shall survive the termination of this Agreement,
whether by satisfaction of the terms and conditions hereof or operation of law.
The Parties acknowledge they are familiar with Section 1542 of the California Civil
Code, and each Party expressly waives and relinquishes any rights and benefits which it has
or may have under 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 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.
The Parties acknowledge that each has specifically reviewed with its attorney the
meaning and effect of the release set forth herein, the language of Civil Code Section 1542,
and the waiver contained herein; that their attorneys have fully explained the impact of these
provisions, and the Parties knowingly accept the risks associated with this provision.
5. Covenant Not to Sue. For a period of seven (7) years after the Effective Date of this
Agreement, 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,
attorneys and members of its governing board, will serve any Notices of Violation and Intent
to Sue or file any lawsuit against the City or UVSD seeking relief for the alleged violations
of the CWA, the Porter Cologne Act, or any other federal or state law with regard to the
City's NPDES Permit, Facility, Collection System, or unpermitted discharges, nor will
CRW, its officers, executive staff and members of its governing board, initiate or support
such lawsuits against the City, brought by other groups or individuals, by providing financial
assistance, personnel time or any other affirmative actions.
6. No Admission. This Agreement is the direct result of a compromise of disputed
allegations and claims. As such, this Agreement shall not, for any purpose, be considered as
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an admission of liability by the City, nor shall the payment of any sum of money in
consideration for the execution of this Agreement constitute or be construed as an admission
of any liability by the City which expressly denies any such liability or wrongdoing.
7. Delays in Scheduling Implementation. In the event implementation by the City of
the measures set forth in Section 2 of this Agreement does not occur by the agreed upon
dates, despite the timely good faith efforts of the City to acquire any necessary approvals
and/or permits, or due to factors unforeseen at the time this Agreement was entered into, the
City agrees to notify CRW in writing as soon as practicable after the anticipated delay
becomes apparent, and in any case, except in a case of force majeure as described below, not
less than twenty (20) days prior to any impending deadline set forth in Section 2, and shall
describe the reasons for the anticipated delay.
8. Force Majeure. The City shall not be deemed in default or breach of this Agreement
by reason of any event which constitutes a force majeure. For purposes of this Agreement, a
force majeure is defined as any event arising from causes beyond the reasonable control of
the City or its contractors that delays or prevents performance. This includes, without
limitation, acts of God, acts of war, acts of terrorism, fire, explosion, extraordinary weather
events, epidemics, pandemics, diseases, restraint by court order or public authority, or other
causes beyond the City's reasonable control. Neither increased costs nor economic hardship
shall constitute a force majeure, unless caused by a force majeure.
9. Breach of Agreement and Dispute Resolution. Any disputes between CRW and the
City concerning any alleged breach of this Agreement shall be subject to the following
dispute resolution procedures. Failure to satisfy the payment condition in Section 3 is a
substantial breach of this Agreement and relieves CRW of its obligations under this
Agreement.
9.1. Good Faith Negotiations. CRW and the City shall make good faith efforts to
resolve informally any alleged breach of the Agreement. If informal efforts to resolve
the alleged breach are unsuccessful, the aggrieved Party claiming a breach shall
provide written notice of the alleged breach and that Party's intent to initiate the
dispute resolution procedure of this Section 9. The notice shall include a recitation of
the material facts and circumstances giving rise to the dispute, including the particular
provisions of this Agreement alleged to have been breached.
9.2. Mediation. If the dispute is not resolved by the Parties within thirty (30) days
after such notice is given, such dispute shall by submitted to mediation before a
mutually agreed neutral mediator. The Parties shall bear their own costs and
attorneys' fees incurred in connection with such mediation. The Parties agree that an
agreement for specific performance of this Agreement is the preferred outcome of
the mediation. Any controversy or claim seeking the payment of money or money
damages through a mediation process or otherwise must be made in the manner and
within the time otherwise required by law, including, but not limited to, the California
Tort Claims Act (Gov. Code Sec. 810 et seq.), applicable statutes of limitation and
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other laws and judicial principles requiring the prompt adjudication of claims. Each
party shall bear its own attorney's fees, costs, and other expenses related to or incurred
in dispute resolution, including mediation, arbitration or judicial proceedings.
10. Notice. All notices, consents, approvals, requests, demands and other
communications (collectively, "Notice") which the Parties are required or desire to serve
upon or deliver to the other Party shall be in writing and shall be given by certified United
States mail, return receipt requested, postage prepaid, addressed as set forth below, or by
electronic mail (in which case the date of delivery shall be deemed the next business day if
the email is delivered after 3:00 pm Pacific Time), addressed as set forth below:
If to CRW:
If to the City:
AND
Jack Silver, Esq.
Law Office of Jack Silver
708 Gravenstein Hwy. No. # 407
Sebastopol, CA 95472
Tel. (707) 528-8175
Email: Ihm28843@a,sbcglobal.net
City of Ukiah
Attention: City Manager
300 Seminary Drive
Ukiah, CA 95482
Email: ssangiacomo@cityofukiah.com
David J. Rapport, Esq.
RAPPORT & MARTON
405 W. Perkins St.
Ukiah, CA 95482
Tel. (707) 462-6846
Email: drapport(acityofukiah.com
The foregoing addresses may be changed by Notice given in accordance with this Section
11. Any Notice sent by certified mail shall be deemed received upon the date signed for.
Any Notice sent by electronic mail shall be deemed received upon electronic transmission
thereof provided sender does not receive electronic notice of non-delivery. If the date of
receipt of any Notice to be given hereunder falls on a weekend or legal holiday, then such
date of receipt shall automatically be deemed extended to the next business day immediately
following such weekend or holiday for purposes of calculating time periods commencing
upon the date of service.
11. Attorneys' Fees. Other than the payment to CRW under Section 3 of this Agreement,
each Party shall bear its own past and future attorneys' fees and costs relating to the subject matter
of this Agreement.
12. Parties' Acknowledgment of Terms. This Agreement has been carefully and fully
read and reviewed by CRW and the City, who hereby represent that the contents of this
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Agreement are understood, and agree that this Agreement is binding on each Party or its
respective predecessors, successors, and assigns as described above.
13. Interpretation and Applicable Law. This Agreement shall be construed and
interpreted in accordance with the laws of the United States and the State of California
without regard to principles of conflicts of law. This Agreement shall be interpreted and
construed as a whole, according to its fair meaning and not strictly for or against any Party,
and without regard to which Party drafted the Agreement or any Section.
14. No Assignments. Each Party to this Agreement represents and warrants that it has
not assigned, transferred, hypothecated, or sold to any third person or entity, any of the rights
or obligations released by or entered into under this Agreement.
15. Counterparts. This Agreement may be executed in multiple counterparts, or have
copies made, each of which shall evidence one and the same agreement. Signature pages
transmitted electronically shall be deemed original signatures and have the same force and
effect as original signatures.
16. Headings. The headings used in this Agreement are for convenience of reference and
shall not be used to define any provision.
17. Entire Agreement in Writing. This Agreement constitutes the entire agreement
between the Parties hereto with respect to the subject matter set forth herein and supersedes
all previous or contemporaneous negotiations, commitments (oral or written), and writings
with respect to the subject matter set forth herein.
18. Modification or Amendment. This Agreement or any of its provisions may be
modified or amended only by written agreement executed by all Parties to this Agreement.
19. Severability. The invalidity or unenforceability of any provision of this Agreement
shall in no way affect the validity or enforceability of any other provision. If, in any action
before any court or other tribunal or competent jurisdiction, any term, restriction, covenant,
or promise is held to be unenforceable for any reason, then such term, restriction, covenant,
or promise shall be deemed modified to the extent necessary to make it enforceable by such
court or other tribunal and, if it cannot be so modified, than this Agreement shall be deemed
amended to delete such provision or portion adjudicated to be invalid or unenforceable, and
the remainder of this Agreement shall be deemed to be in full force and effect as so modified.
20. Representations and Warranties. This Agreement is given voluntarily, free of undue
influence, coercion, duress, menace, or fraud of any kind. No Party, nor any officer, agent,
employee, representative, or attorney of or for any Party, has made any statement or
representation to any other Party regarding any fact relied upon in entering this Agreement,
and no Party is relying upon any statement, representation, or promise of any other Party,
nor of any officer, agent, employee, representative, or attorney of or for any Party, in
executing this Agreement or in making the settlement provided herein, except as expressly
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stated in this Agreement.
21. No Third -Party Beneficiaries. This Agreement is not intended to confer any rights
or obligations on any third party or parties, and no third party or parties shall have any right
of action under this Agreement for any cause whatsoever. 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.
22. Authority. Each of the persons signing this Agreement on behalf of an entity
represents and warrants that he or she has actual authority and capacity to execute the
Agreement on behalf of the entity and to bind it to all of the terms of this Agreement.
1N WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by
their duly authorized representatives.
CITY OF UKIAH
age San • acomo - Larry Ha • son
City Manager Board President
By:
CALIFORN
Date: 05/19/2020
Settlement Agreement - CRW / Ukiah
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Date: /I
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