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HomeMy WebLinkAbout08.b.1) Written Legal Update55512 th Street, Suite 1500 Oakland, California 94607 tel (510) 808 -2000 fax (510) 444 -1108 www.meyersnave.com meyers nave Central Contra Costa Sanitary District District Counsel Update by Kenton L. Alm March 5, 2015, Board Meeting Kenton L. Alm Attorney at Law Direct Dial: (510) 808 -2081 kalm @meyersnave.com This District Counsel Update briefly summarizes the issues for which legal services have been required during the last several months. Since the last update to the Board on August 14, 2014, there has been some use of typical District Counsel services, but the more substantial portion of legal efforts have related to several pieces of ongoing litigation, pre - litigation activities and non - reoccurring activities such as the cost of services study. This summary briefly lists litigation efforts that were undertaken during Fiscal Year 2014/15 and several non - litigation issues requiring more than routine legal responses. 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. Contra Costa County Deputy Sheriff's Association, et al. v. Contra Costa Count 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 in 2013 • Final decision entered May 12, 2014 • Appeal filed on June 24, 2014 • Record on appeal filed July 7, 2014 • Opening briefs received January 26, 2015 • District's opposition brief due March 26, 2015 Gilbert Enriquez, et al. v. Town of Danville, et al., Contra Costa County Superior Court, Case No. MSC14 -00968 • Bicycle rider struck allegedly protruding manhole on Morninghome Road • Complaint filed May 22, 2014 • Answer filed July 25, 2014 • Discovery ongoing • Case management hearing February 2, 2015 • Demurrer hearing by Danville heard February 2, 2015; Demurrer denied District Counsel Update March 5, 2015 Page 2 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 • Basic discovery undertaken in summer and fall 2014 • Motion for summary judgment filed in fall of 2014 and denied January 12, 2015 • Trial date and mediation date to be set at CMC on March 6, 2015 B.A. Retro Inc. v. D. L. Falk Construction, Inc., et al., Contra Costa County Superior Court, Case No. MSC14 -01229 • Complaint filed on June 30, 2014, by subcontractor for non - payment by contractor relating to seismic improvements at HOB • With the filing of a First Amended Complaint, the District was removed from the case on August 20, 2014 Nikki Rubio v. City of Lafayette, Contra Costa County Superior Court, Case No. MSC 14 -00229 • Bicycle personal injury lawsuit • Allegation of dangerous condition due to protruding manhole adjacent to 4120 Happy Valley Road, Lafayette • District not named as a party but discussions with Lafayette ongoing • Pre -trial conference set for April 20, 2015 • Jury trial set for May 8, 2015 Schaeffer, et al. v. GregorVillage Partners LP, Contra Costa County Superior Court, Case No. MSC 11-01307; 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 via ancient District insurance policies • Settlement agreement between District and Plaintiffs fully executed December 2014 • Motion for settlement approval and good faith determination filed February 19, 2015 • Hearing on the good faith motion to approve settlement scheduled for March 26, 2015 District Counsel Update March 5, 2015 Page 3 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 • 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 • Provision of requested documents to Regional Board (summer to fall 2014) • Response to Tentative Order provided to Regional Board on August 15, 2014 • Response to Regional Board staff provided on September 10, 2014 • Prepared presentation for Regional Board hearing • Regional Board hearing held November 12, 2014; CAO issued without naming District • Chevron served Petition for Review on December 12, 2014; Primary issue raised is failure of Regional Board to name District D. P. Nicoli Inc. v. Carone & Co., 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 party check to Carone & Nicoli • Case dismissed June 25, 2014 Underground Boring Systems, Inc. v. Carone & Co., Inc., et al., Contra Costa County Superior Court, Case No. MSC14 -01746 • Complaint filed on September 22, 2014, by subcontractor for non - payment by contractor relating to Lafayette sewer renovation project • Plaintiff to file a First Amended Complaint; Complaint failed to state sufficient facts to support a claim against the District • Attempting to resolve the matter without further litigation Water Damage Claim, 69 La Espiral (Pre-litigation) • Numerous contacts with staff, insurers, contractor regarding clean up, reconstruction analysis, insurance coverage liability • Pre - litigation type activities ongoing District Counsel Update March 5, 2015 Page 4 2. Administration. Support on administrative matters has included both the routine and the not so routine. The routine issues 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 less routine administrative and liability matters during this period have included preparation for and attendance at Board workshops, development of new policies and procedures dealing with Prop 218 and support for creation of additional notification documents relating to the sewer service charges. The Meyers Nave firm has also provided ethics training for the Board and staff members. Other issues which required legal support included local area vendor preferences, computer security issues, response to Office Depot qui tam subpoenas, participation in development of strategic plan and initiatives and KPIs. Additional support has been provided to assist in the project to separate Board polices from procedures and develop new Board policies for adoption. Support for the Purchasing Department and the new management team has been provided on a host of critical issues. 3. Engineering/Right -of -Way /Source Control/Construction Issues. The Engineering Department has required substantial support and guidance with regard to the cost of service study and the inherent Prop 218 issues related to the upcoming sewer service charge rate setting. Several construction projects have required more than normal legal input due to major construction claims, stop notices, extra work claims, and support for construction project related claims and litigation. The close out of the Lafayette Phase 8 project continues due to substantial extra work claims. Matters related to annexations, such as the SOS Danville complaints regarding the Magee Ranch development, have needed to be addressed. Solar energy related projects and collection system renovation projects have required legal support. The source control and household hazardous waste programs received some attention due to pharmaceutical disposal policies and matters such as Caffe Classico. Special attention has also been required with a number of ongoing and future District projects such as the potential for methods for prequalifying potential centrifuge manufactures. Right -of -way issues such as the Pleasant Hill interceptor easements with the County and matters relating to joint use by utilities of District easements are being addressed. 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 long term maintenance contract with Solar Turbines and PG &E sustainable solutions program. With regard to collection operation systems, time has been required with regard to the follow up on River Watch settlement requirements and litigation and pre - litigation issues dealing with a bicycle and pedestrian roadway safety as well as follow up on the pending litigation between Bobo Construction and the pervious concrete supplier. District Counsel Update March 5, 2015 Page 5 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 routine District matters. This summary by its nature does not comprehensively outline all of the many day -to -day and more routine questions and issues that 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.