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Home My WebLink About05.b.1) Written Legal UpdateCentral Contra Costa Sanitary District District Counsel Update by Kenton L. Alm August 14, 2014, 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 somewhat typical use of District legal counsel services since the last update to the Board on January 23, 2014, and a substantial portion of these legal efforts have related to several pieces of ongoing litigation and pre- litigation activities. 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 onsite 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 County Superior Court, Case No. N11 -1029 • 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 • Settlement between the County and Chevron occurred • Decision made to terminate the appeal • Matter completed as of June 16, 2014 Contra Costa County Deputy Sheriffs Association et al v Contra Costa County Employee's Retirement Association et al., Contra Costa County Superior Court, Case No. MSN12 -1870; Court of Appeal of the State of California, First Appellate District, Case No. A141913 • Suit by member bargaining groups and unions asserting retirement revisions of AB 197 are not applicable to current employees due to vested rights • Joined as Interested Party on April 16, 2013 • Final decision entered May 12, 2014 • . Opposition to Appellants' Motion to Stay filed June 16, 2014 • Appeal filed on June 24, 2014 • Record on appeal filed July 7, 2014 • Proposed briefing schedule to be received from court this week D. P. Nicoli Inc. v. Carone & Company Inc et al., Contra Costa County Superior Court, Case No. MSC14 -00420 • Stop notice action regarding Lafayette sewer renovations, Phase 8 • Settlement reached; subcontractor satisfied by two parry check to Carone & Nicoli • Case dismissed June 25, 2014 District Counsel Update August 14, 2014 Page 2 Gilbert Enriquez, et al. v. Town of Danville et al., Contra Costa County Superior Court, Case No. MSC14- 000968 • Bicycle rider struck allegedly protruding manhole on Morninghome Road • Complaint filed May 22, 2014 • Answer filed July 25, 2014 • Discovery ongoing • Case management hearing October 9, 2014 • Danville's Demurrer hearing February 25, 2015 Tannaz Heaney v. City of Walnut Creek et al., Contra Costa County Superior Court, Case No. MSC13 -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 • Mediation date September 20, 2014 • Hearing on motion for summary judgment September 29, 2014 • Trial date November 3, 2014 Nikki Rubio v. Cily of Lafayette, Contra Costa County Superior Court, Case No. MSC 14 -00229 • Allegedly protruding manhole lawsuit relating to 4120 Happy Valley Road, Lafayette; District not named as a party • Tifton Gantt, District employee, deposed on July 18, 2014 Schaeffer, et al. v. Gregory Village Partners LP, Contra Costa County Superior Court, Case No. MSC11- 01307; U.S. District Court, Northern District, Case No. 3:13 -cv -04359 • Dry cleaner PERC contamination lawsuit by adjacent homeowners • Primary defense of District now handled by Bassi Edlin Huie & Blum • Lawsuit formally removed to U.S. District Court on September 19, 2013 • Settlement offer provided August 4, 2014; pending action of Board Site Cleanup Investigation - Regional Board 13267 Letter' and Tentative CAOs RS- 2014 - 0750132 and RS- 2014 - 0750204 • 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) • Follow up responses prepared for Regional Board on May 28, 2013 • Follow up analysis and supplemental draft report prepared and provided to Regional Board in December 2013 • Comment letter submitted August 4, 2014 • District preparing supplemental rebuttal to letter from Gregory Village claiming District should be named in order • Current Regional Board hearing date is September 10, 2014 District Counsel Update August 14, 2014 Page 3 2. Engineering/Right -of -Way /Source ControUConstruction 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, lease negotiation (Sustainable Farm) and other non - construction issues. Of course, typical construction related issues have arisen including the emergency contract for mixing tank coating failure. There is continuing work on legal advice to the construction specification committee and assistance has been provided with regard to both bidding and construction administration matters. Construction management matters such as the Carone stop notice claim and lawsuit have also been addressed. 3. Administration. Support on administrative matters has included both the routine and the not so routine. The routine issues, of course, involve preparation for and 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 form consulting agreements, BAAQMD commuter benefits requirements, fee setting, cyber security issues, production of subpoenaed records and a variety of risk management policy issues. With the new management team in place, there has been both the need and opportunity to review and begin the discussion on a number of existing procedures and policies which have been in place for some time and may deserve a fresh look. 4. Treatment Plant and Collection System. Legal support has also been provided to Plant Operations on matters relating to contracting for equipment and services, such as the Solar Turbine gas leak contract and the Bulldog Gas payment claim, which has now been withdrawn. Other maintenance and equipment replacement issues have deserved some attention. Summary Although the litigation listing above would suggest that most of your District Counsel's time is being spent on litigation rather than general advice type matters, the litigation matters are easy to identify whereas general advice matters tend to arise and be resolved very quickly. Accordingly, the greater amount of space dedicated in this memo to litigation issues is not fully reflective of the balance of the time spent by Meyers Nave on CCCSD matters. This summary by its nature does not comprehensively outline all of the many day -to -day and more routine questions and issues which have arisen. Hopefully it will provide some insight to the general scope of issues that have been addressed. District Counsel is available to answer questions and provide further follow up individually or through additional written materials if any Board member seeks additional details on past or pending matters.