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Home My WebLink About06.b.1) Written Legal Update-Meyers Navemeyers i nave 555 12th Street, Suite 1500 Oakland, California 94607 tel (510) 808-2000 fax (510) 444 -1108 www.meyersnave.com Central Contra Costa Sanitary District District Counsel Update by Kenton L. Alm October 15, 2015, Board Meeting 6.6./ 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 March 5, 2015, the new District Counsel contract has been implemented resulting in a greater presence onsite. There has been substantial legal efforts 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. Carone and Company Inc. • Contractor filed claim in September 2014 relating to the completed project, Lafayette Sewer Renovation Project Phase 8, District Project 8404, for $771,538 • Contractor filed complaint in June 2015 in Contra Costa County Superior Court, Case No. MSC 15- 01143; District. not formally served with complaint • Several lengthy negotiations held resulting in settlement for $340,000 to be paid by District to Carone • Settlement Agreement executed August 31, 2015 Underground Boring Systems Inc. v. Carone & Co Inc et al., Contra Costa County Superior Court, Case No. MSC 14 -01746 • Complaint filed on September 22, 2014, by subcontractor for non - payment by contractor relating to Lafayette sewer renovation project • Attempting to resolve the matter without further litigation efforts • Matter still pending District Counsel Update October 15, 2015 Page 2 Contra Costa County Deputy Sheriff's 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 • District's opening brief on cross appeal filed May 14, 2015 • District's opposition to motion to stay filed June 24, 2015 Public Employees Union Local No. 1 et al. v Contra Costa County Employees' Retirement Ass'n., Contra Costa County Superior Court, Case No. MSN14 -1221 • District's motion to intervene on the lawsuit brought by the unions to attack CCCERA' s decision to end straddling filed August 31, 2015 • Hearing set for October 15, 2015 Gilbert Enriquez, et al. v. Town of Danville et al., Contra Costa County Superior Court, Case No. MSC 14 -00968 • Bicycle rider struck allegedly protruding manhole on Morninghome Road • Mediation held and agreement reached in favor of Plaintiffs for $50,000 • Settlement agreement executed July 16, 2015; District paid $25,000 to Plaintiff in settlement on August 5, 2015 • Case dismissed August 10, 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 • Case settled at mediation for $15,000 ($7,500 each Defendant) • Dismissal filed June 24, 2015 Nikki Rubio v. City of Lafayette, Contra Costa County Superior Court, Case No. MSC14 -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 • Case settled May 7, 2015; case dismissed June 26, 2015 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 handled by Bassi Edlin Huie & Blum via ancient District insurance policies District Counsel Update October 15, 2015 Page 3 • Settlement agreement between District and Plaintiffs fully executed December 2014; payment of $50,000 by District • Hearing on the good faith motion to approve settlement March 26, 2015; motion granted thereafter • District dismissed from the lawsuit on June 28, 2015 Site Cleanup Investigation, Regional Board 13267 Letter and Tentative CAOs RS- 2014 - 0750132 and RS- 2014 - 0750204 • Demand letter by Regional Board for District to provide response to allegation of its responsibility for PERC contamination at Gregory Village Mall, Pleasant Hill • Regional Board hearing held November 12, 2014; CAO issued without naming District • Chevron and Gregory Village served Petitions for Review in December 2014; a primary issue raised is failure of Regional Board to name District • Investigation activities continue by Chevron and Gregory Village • No hearing date for petitions had been set Water Damage Claim, 69 La Espiral (Pre-litigation) • Significant flood damage event occurred in November 2014 due to District contractor breaking waterline • Numerous contacts with staff, insurers, contractor regarding clean up, reconstruction analysis and insurance coverage liability • Pre - litigation type activities ongoing • As of this date, the expenses incurred total more than $3000,000 and the recovery from Travelers exceeds $100,000 • The home was inspected on August 12, 2015, by the District, Travelers, construction experts and structural experts • Settlement discussions with plaintiff and insurers continuing 2. Transactional and General Counsel Advice. Since the first of the year, there has been an abnormally heavy demand for public law general advice and work on other transactional matters. A number of the issues cut across several of the District's departments, such as: the Cost of Service Study, creation of a new sewer service fee structure, treatment plant master plan, solar energy purchase issues, and the Solar Turbine maintenance contract. These major issues each required substantial discussion and analysis, including revisiting numerous legal issues. The Cost of Service Study and fee setting matters alone involved numerous meetings, review of multiple issues and coordination with various staff members and consultants. These major undertakings, along with a variety of other non - reoccurring smaller matters provided the need for significantly more advice type legal services than was typical prior to 2014. District Counsel Update October 15, 2015 Page 4 Of course, there are too many individual matters to discuss them all here. However, several worth mentioning include processing the Caffe Classico capacity fee issue, addressing a significant number of public record act requests and subpoena duces tecums, and evaluating issues such as vendor preference programs and the implementation of new purchasing requirements under SB854 (significant change to prevailing wage laws). There have also been a series of issues emanating from the environmental and engineering groups including proposed° changes to the PUC's solar power rate structure, Summerhill Homes /Magee Ranch CEQA issues, recycled water scalping plants, drought- related recycled water issues, approval of new Acme leachate contract, centrifuge piloting, recycled water pricing, public schools rate impact and the Sun Edison solar purchase agreement. This list is of course not inclusive. There have also been activities primarily associated with CSO and plant operations, although the demand for legal services from these departments is not typically as great. The issues which have been addressed include negotiations with the Alamo Stonegate Homeowners Association, coordination with staff and litigators on litigation arising out of the CSO construction project by Bobo Construction, River Watch /category 1 spills, and plant related maintenance and upgrade projects. Summary During the last several months, litigation and pre - litigation matters have consumed a greater than average portion of District Counsel's time. However, as the several narrative paragraphs above hopefully communicate, the District as a whole has been aggressively attacking new issues which in turn results in a substantial demand for legal input on day -to -day matters. In short, this has been a very busy and demanding period for your District Counsel and the Meyers Nave staff. Hopefully this summary does provide some insight to the general scope of issues that have been addressed over the last few months. 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.