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HomeMy WebLinkAbout06.b.1) District Counsel Written Legal Update6.6.� Central Contra Costa Sanitary District District Counsel Update by Kenton L. Alm August 15, 2013, Board Meeting This District Counsel Update briefly summarizes the issues for which legal services have been required during the last several months. There has been a significant need for legal services since the last update to the Board on January 31, 2013, and these legal efforts have been primarily due to several pieces of litigation coupled with the continued need for legal services related to typical staff and Board issues. This summary briefly lists litigation efforts that were undertaken this year and lists several of the non - litigation issues which have required District Counsel's services. The matters listed in this update are in addition to the day -to -day responses to staff inquiries, attendance at the weekly on -site office hours, attendance at agenda review and Board committee and formal Board meetings. 1. Litigation and Regulatory Matters. City of Brentwood, et al. v. Campbell, et al., Contra Costa Superior Court Case No. N11 -1029 • The lawsuit by public agencies, including the District, contesting the distribution of supplemental tax payments potentially owed to Chevron and due to overvaluation of the Chevron Richmond Refinery • Matter being jointly handled by Jarvis, Fay, Doporto & Gibson • Hearing /trial has been completed • Appeal by public agencies has been filed and now awaiting transcripts prior to filing opening briefs Contra Costa County Deputy Sheriffs Association, et al. v. Contra Costa County Employees Retirement Association, et al., Contra Costa Superior Court Case No. MSN 12 -1870 • Suit by member bargaining groups and unions asserting retirement revisions of AB 196 are not applicable to current employees due to vested rights • Joined as Interested Party on April 16, 2013 • Case Management Conference held on July 6, 2013; next CMC scheduled for August 21, 2013; substantive motions scheduled Heaney v. City of Walnut Creek, et al., Contra Costa Superior Court Case No. C13-00538 • Slip and fall action generally based on allegation that maintenance hole cover constitutes a dangerous condition of public property • Complaint filed March 11, 2013 • Answer filed April 29, 2013 • Depositions of David Harper and Mark Goss taken June 26, 2013 District Counsel Update August 15, 2013 Page 2 Pimentel v. CCCSD, Contra Costa Superior Court Case No. C11-023 94 • Rear end vehicle collision by CSO truck on SUV with allegation of injuries to Plaintiff Settlement of $25,000 transmitted to Plaintiff on April 4, 2013, after discovery, IME and mediation Case dismissed April 8, 2013 River Watch 60 -Day Clean Water Act Notice • Clean Water Act citizen suit alleging collection system SSOs as violations • Requested documentation provided and negotiations ongoing • Complaint to be filed Schaeffer, et al. v. Gregory Village Partners LP, Contra Costa Superior Court Case No. MSC 11 -01307 • Dry cleaner PERC contamination lawsuit by adjacent homeowners • Primary defense of District now handled by Bassi Edlin Huie & Blum • District Counsel role significantly reduced • Discovery ongoing • Some prior attorneys' fees recovered Water Code Section 13267 Letter Response • Demand by Regional Board to provide response to allegation of regulatory responsibility for PERC contamination at Gregory Village Mall, Pleasant Hill • Same site as Schaeffer litigation and similar environmental contamination issue • Substantial response prepared, along with expert consultant opinions and submitted to Regional Board on May 28, 2013 • Follow up analysis and supplemental draft report prepared • Awaiting formal decision of Regional Board on potential issue of cleanup order 2. Engineering /Construction/Property Rights Issues. There has been the normal, somewhat constant, flow of legal work from the Engineering Division. Over the last several months, the balance of work has shifted from support on construction matters to support of the Environmental Services Division on a variety of real property and connection fee collection issues. Real property related issues have included leases such as the HOB relocation lease, County quarry lease and cell tower leases, as well as the potential Kiewit Farm Project. Additionally, there have been a variety of real property issues concerning matters such as drainage from St. Mary's college facilities, the Diablo Country Club easements, the Concord Burnett easements and other utility encroachment matters. In addition to the right of way and real property work, there has been support for the District's source control efforts and the Clean Water Inspection Program. Of course, typical construction related issues have arisen including a number of matters related to the HOB seismic retrofit project. District Counsel Update August 15, 2013 Page 3 3. Administration, Treatment Plant and Collection System. Support on administrative matters has included both the routine and the not so routine. The routine issues, of course, involve preparation for, review of materials and attendance at Board and committee meetings, as well as support on Brown Act, Public Records Act, and other procedural issues. The non - routine issues have dealt with matters such as fee and rate setting, appeals of staff decisions and support for the General Manager recruitment and engagement process. Most recently, support has been required for responding to a very broad document subpoena related to a qui tam and class action against Office Depot relating to public agency purchases (including the District's) since 2000. Legal support has also been provided to both Plant Operations and CSO on matters relating to contracting for equipment and services, such as Solar Turbines maintenance contract and CSO replacement of several pump station variable frequency drives. 4. Ongoing Matters. District Counsel will continue to attend routine staff and Board meetings and provide one -day a week onsite legal services as provided for in the existing retainer agreement. It is anticipated that a majority of the litigation efforts for the next few months will relate to the Contra Costa County Deputy Sheriffs' Association v. CCCERA, the River Watch Notice Letter and continued monitoring of the Schaeffer v. Gregory Village Partners matter. The Heaney matter should continue to proceed through the normal course for personal injury cases to conclusion through motions, trial or settlement. District Counsel is available to answer questions and provide further follow up individually or through additional written materials if any Board member so desires.