HomeMy WebLinkAbout1992-04-07; City Council; 11618; Settlement@ GI. CITY-OF CARLSBAD - AGENDHILL
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AB#&.
MTQ. 4/7/92
DEPT. CA
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TTTLE:
SETTLEMENT OF LAWSUIT NCRRA V. SDG&E CASE NO. 634642 CITY MQR.
RECOMMENDED ACTION:
That the City Council, by motion, place a copy of the settlement agreement in the public record thereby announcing publiclythat the
agreement embodies the position of the City of Carlsbad in the matter.
ITEM EXPLANATION This lawsuit was settled by the Settlement Agreement and General Releases entered into by all parties on Monday, February 24, 1992. Final Judgement and dismissals will be entered on or before April
17, 1992.
This settlement ends the lawsuit declaring the Power Purchase
Agreement terminated and unenforceable and, as a result, the PPA
cannot be used to build an incinerator at the San Marcos site, or
for any other purpose.
FISCAL IMPACT
None
EXHIBIT
Agreement
SE"LEMENT AGREEMENT WITH GENERAL RELEASES
This Settlement Agreement with General Releases ( "AGREEMENT")
is made as of February 24, 1992 (the "EFFECTIVE DATE"), between
and among, (1 ) North County Resource Recovery Associates ("NCRRA") ,
TEC Energy Corporation, San Marcos Resource Recovery, Inc., and
Thermo Electron Corporation (individually and collectively,
"ASSOCIATES") ; (2) San Diego Gas & Electric Company ("SDG&E") ; and,
(3) the City of Enchitas, the City of Carlsbad, the City of
Escondido, and the City of Oceanside (individually and collectively
the "INTERVENOR CITIES").
This AGREEMENT is made with reference to the following facts:
1. On March 4, 1991, NCRRA filed its Complaint for
Declaratory Relief in the Superior Court of the State of California
in and for the County of San Diego in Case No. 634642 (the
"ACTION"), in connection with a Power Purchase Agreement executed
in 1983 between SDG&E and NCRRA (the "PPA"). The PPA provided,
among other things, that NCRRA would construct a waste-to-energy
facility at the San Marcos landfill in Northern San Diego County
(the "WTE FACILITY") and that SDG&E would purchase power generated
by the WTE FACILITY under terms more fully set forth in the PPA.
2. On October 25, 1991, SDG&E responded to NCRRA'S
Complaint, denying its material allegations and setting forth
affirmative defenses.
3. Also on October 25, 1991, SDG&E filed its Cross-
complaint for Declaratory Relief in the ACTION, alleging that since
execution of the PPA in 1983, NCRRA had failed to perform its
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obligations to construct and operate the WTE FACILITY; that NCRRA
had failed unjustifiably to perform its obligations under the PPA
within a reasonable period of time; and, that events and circum-
stances occurring since execution of the PPA, including NCRRA'S own
conduct, had rendered the PPA invalid, unenforceable, commercially
infeasible and contrary to the public interest. SDG&E further
alleged in its Cross-complaint that it had performed its duties and
responsibilities under the PPA, excepting those excused by NCRRA'S
failures to perform.
4. On November 21, 1991, NCRRA responded to SDG&E's
Cross-complaint, denying its material allegations and setting forth
affirmative defenses.
5. On November 8, 1991, a Complaint in Intervention was
filed in the ACTION by the INTERVENOR CITIES, seeking, among other
things, a declaration that the PPA was invalid or terminated; on
December 13, 1991, NCRRA served its Verified Answer and Affirmative
Defenses to the Complaint in Intervention; and, on December 16,
1991, SDG&E filed its Answer and Affirmative Defenses to the
Complaint in Intervention.
6. ASSOCIATES, SDG&E and the INTERVENOR CITIES each
intend by this AGREEMENT to compromise and settle all disputes and
relationships among them in connection with the ACTION, the PPA,
and/or the WTE FACILITY; however, this AGREEMENT is not intended
to compromise and settle disputes, if any, among ASSOCIATES, SDG&E
and/or INTERVENOR CITIES that may arise after the EFFECTIVE DATE
in connection with the Recycling Facility to be built by NCRRA at
the San Marcos landfill in Northern San Diego County, so long as
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such disputes neither arise out of nor are connected with the
ACTION, the PPA and/or the WTE FACILITY.
NOW THEREFORE, for good and valuable consideration ASSOCIATES,
SDG&E and the INTERVENOR CITIES individually and collectively agree
as follows:
I. DISMISSAL OF COMPLAINT, FINAL JUDGMENT IN FAVOR OF SDG&E ON
ITS CROSS-COMPLAINT AND DISMISSAL OF COMPLAINT IN
INTERVENTION.
A. On or before April 17, 1992, NCRRA shall cause entry of
dismissal, with prejudice, of its Complaint for Declaratory Relief
in its entirety, as to all defendants, in the form of the Request
for Dismissal attached hereto as Exhibit "A."
B. On or before April 17, 1992, NCRRA shall cause entry of
Final Judgment by the Court in favor of SDG&E on SDG&E's Cross-
complaint for Declaratory Relief, in the form of the Stipulation
and Final Judgment on Cross-complaint attached ,hereto as Exhibit
11 11 B.
C. On or before April 17, 1992, INTERVENOR CITIES shall
cause entry of dismissal, with prejudice, of the INTERVENOR CITIES'
Complaint in Intervention in the ACTION, in its entirety, as to all
defendants, in the form of the Request for Dismissal attached
hereto as Exhibit "C."
11. GENERAL RELEASES AND WAIVERS.
A. ASSOCIATES hereby fully and forever release, acquit and
discharge SDG&E from any and all claims, rights and/or obligations
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.. arising out of or connected with (1) the ACTION, (2) the PPA,
and/or (3) the WTE FACILITY (the "RELEASED CLAIMS").
ASSOCIATES acknowledge that the RELEASED CLAIMS include
claims, rights and/or obligations which they do not know or suspect
to exist; and, as to the RELEASED CLAIMS, ASSOCIATES hereby waive
all rights which may exist under California Civil Code Section
1542, which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the
debtor. 'I
B. Without affecting in any way the Final Judgment referred
to in paragraph I.B., above, SDG&E hereby fully and forever
releases, acquits and discharges ASSOCIATES from any and all
claims, rights and/or obligations arising out of the ACTION, the
PPA and/or the WTE FACILITY.
SDG&E acknowledges that its release includes claims,
rights and/or obligations which SDG&E does not know or suspect to
exist; and, as to the claims, rights and/or obligations being
released, SDG&E hereby waives all rights which may exist under
California Civil Code Section 1542, which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
C. On or before the EFFECTIVE DATE, NCRRA shall deliver to
SDG&E a written waiver by the County of San Diego (the "COUNTY")
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that it will not pursue any rights it may have under the PPA or
litigate the validity of the PPA.
D. ASSOCIATES hereby fully and forever release, acquit and
discharge INTERVENOR CITIES from any and all claims, rights and/or
obligations arising out of or connected with (1 ) the ACTION and (2)
the PPA.
ASSOCIATES acknowledge that their release in the
immediately preceding paragraph includes claims, rights and/or
obligations that they do not know or suspect to exist; and, as to
the claims, rights and/or obligations being^ released in the
immediately preceding paragraphs, ASSOCIATES hereby waive all
rights that may exist under California Civil Code Section 1542,
which provides as follows:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing
the release, which if known by him must have
materially affected his settlement with the
debtor. "
This release is intended not to affect (1) the Recycling
Facility to be built by NCRRA at the San Marcos landfill in
Northern San Diego County, or (2.) the Joint Settlement Agreement
and Release, entered into November 1991 by the City of Carlsbad,
the City of Enchitas, the City of Escondido, "NCRRA and others,
that relates to the Recycling Facility.
E. INTERVENOR CITIES hereby fully and forever release,
acquit and discharge ASSOCIATES from any and all claims, rights
and/or obligations arising out of or connected with (1 ) the ACTION
and (2) the PPA.
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INTERVENOR CITIES acknowledge that their release in the
immediately preceding paragraph includes claims, rights and/or
obligations that INTERVENOR CITIES do not know or suspect to exist;
and, as to the claims, rights and/or obligations being released in
the immediately preceding paragraph, INTERVENOR CITIES hereby waive
all rights that may exist under California Civil Code Section 1542,
which provides as follows:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing
the release, which if known by him must have
materially affected his settlement with the
debtor. I'
This release is intended not to affect (1) the Recycling
Facility to be built by NCRRA at the San Marcos landfill in
Northern San Diego County, or (2) the Joint Settlement Agreement
and Release, entered into in November 1991 by the City of Carlsbad,
the City of Enchitas, the City, of Escondido, NCRRA and others,
that relates to the Recycling Facility.
111. ATTORNEY'S FEES AND COSTS.
A. ASSOCIATES, SDG&E and INTERVENOR CITIES each shall bear
their own costs, including attorneys' fees, incurred in connection
with the ACTION and in negotiating, preparing and executing this
AGREEMENT.
IV. ASSOCIATES', SDG&E'S AND INTERVENOR CITIES' WARRANTIES, AND
INDEMNIFICATION.
A. ASSOCIATES represent and warrant that they have not
assigned or purported to assign the PPA or any claims, rights,
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obligations, costs and/or attorneys' fees arising out of the PPA
and/or the WTE FACILITY to any individual or entity other than the
COUNTY, as reflected in a December 17, 1991 amendment to a Restated
Service Agreement between the COUNTY and NCRRA;"
B. ASSOCIATES represent and warrant to SDG&E that ASSOCIATES
shall not aid, cause or encourage others to make, assert or
maintain any action, demand or lawsuit against SDG&E arising out
of the RELEASED CLAIMS; and,
C. SDG&E represents and warrants to -ASSOCIATES that SDG&E
shall not aid, cause or encourage others to make, assert or
maintain any action demand or lawsuit against ASSOCIATES arising
out of (1) the ACTION, (2) the PPA, and/or (3) the WTE FACILITY.
D. ASSOCIATES shall indemnify and hold SDG&E harmless from
all claims and liabilities arising out of any breach of the
representations and/or warranties contained inyaragraphs IV. A.
and/or IV. B. above.
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E. SDG&E shall indemnify and hold ASSOCIATES harmless from
all claims and liabilities arising out of any breach of the
representations and/or warranties contained in paragraph IV. C.
above.
F. ASSOCIATES warrant that NCRRA has a legitimate business
reason for not entering dismissal or judgment before April 17,
1992, and acknowledges that INTERVENOR CITIES may have relied on
such business reason in entering into this AGREEMENT.
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V. FURTHER ASSURANCES.
ASSOCIATES, SDG&E and INTERVENOR CITIES shall perform any
further acts and execute and deliver any documents which may be
reasonably necessary to carry out the intent of this AGREEMENT.
VI. ATTORNEYS' FEES.
Should any dispute arise pertaining to this AGREEMENT or its
performance, the prevailing party(ies) in any litigation shall be
entitled, among other things, to recover reasonable attorneys' fees
and costs incurred in connection with such dispute.
VII. GOVERNING LAW.
This AGREEMENT is made and entered into at San Diego,
California, and shall be interpreted, enforced and governed by and
under the laws of California.
I
VIII. JURISDICTION AND VENUE.
ASSOCIATES, SDG&E and the INTERVENOR CITIES agree that any
action or proceeding taken to enforce or interpret any of the terms
of this AGREEMENT shall be brought and maintained in San Diego
County, California, and in no other place.
IX. INDEPENDENT ADVICE.
ASSOCIATES, SDG&E and the INTERVENOR CITIES each acknowledge
that they have received independent legal advice with respect to
the advisability of making this AGREEMENT, and specifically with
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respect to the meaning and effect of waiving California Civil Code
Section 1542.
X. SUCCESSORS AND ASSIGNS.
This AGREEMENT shall apply to, bind and inure to the benefit
of the respective successors-in-interest, assigns, past and present
joint venturers, parent corporations, subsidiaries, affiliates,
shareholders, directors, officers, employees and attorneys of
ASSOCIATES, SDG&E, and/or the INTERVENOR CITIES.
XI. COUNTERPARTS.
This AGREEMENT may be executed in one or more counterparts
all of which together shall constitute one and the same AGREEMENT.
XII. INTERPRETATION.
ASSOCIATES, SDG&E and/or the INTERVENOR ,CITIES each have
agreed to the use of the particular language of the provisions of
this AGREEMENT, and any question of doubtful interpretation shall
not be resolved by any rule of interpretation providing for
interpretation against the party who caused an uncertainty to
exist, or against the draftsman.
XIII. PRONOUNS.
Masculine and/or feminine pronouns shall be substituted for
the neuter form and/or vice versa, and the plural shall be
substituted for the singular form and/or vice versa, in any place
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or places herein in which the content requires such substitution
or substitutions.
XIV. NO ORAL MODIFICATIONS.
This AGREEMENT may be amended or modified in writing only,
signed by ASSOCIATES, SDG&E and the INTERVENOR CITIES.
XV. DESTRUCTION OR RETURN OF DOCUMENTS.
ASSOCIATES and SDG&E each shall return or destroy at the other
party's option, any and all documents produced to it by the other
in the ACTION. The party returning or destroying documents shall
bear the expense of doing so. No copies of the produced documents
will be made or retained by the party to whom production was made.
XVI. EXHIBITS.
All exhibits to this AGREEMENT are incorporated herein.
XVII. INTEGRATION.
This AGREEMENT constitutes the final, complete and exclusive
compromise agreement and understanding between and among
ASSOCIATES, SDG&E and the INTERVENOR CITIES and supersedes all
prior or contemporaneous written or oral agreements. Each
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acknowledges that there are no representations, warranties,
agreements, arrangements or understandings other than as expressly
contained in this AGREEMENT.
THE FOREGOING IS APPROVED AND AGREED TO:
NORTH COUNTY RESOURCE
RECOVERY ASSOCIATES
By: Name Printed:
Its:
TEC ENERGY CORPORATION
By: Name Printed:
Its:
SAN MARCOS RESOURCE RECOVERY,
INC.
By: Name Printed: Its:
THERM0 ELECTRON CORPORATION
By:
Name Printed:
Its:
SAN DIEGO GAS & ELECTRIC COMPANY
By: Name Printed: Its:
CITY OF ENCINITAS
By: Name Printed:
Its:
CITY OF CARLSBAD n
Name Printed: RONALD R. BALL Its: ACTING CITY ATTORNEY
CITY OF ESCONDIDO
By: Name Printed: Its:
CITY OF OCEANSIDE
By:
Name Printed:
Its:
[Signatures continue on next page.]
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,
P
acknowledges that there are no representations, warranties,
agreements, arrangements or understandings other than as expressly
contained in this AGREEMENT.
THE FOREGOING IS APPROVED AND AGREED TO:
.- NORTH COUNTY RESOURCE RECOVERY ASSOCIATES
CITY OF ENCINITAS
By: By: D. Dwight Wordc Name Printed: Its: Its Special Counsel
Name” Prihted: vrr Y fi-
TEC ENERGY CORPORATION
By :
Name Printed:
Its:
SAN MARCOS RESOURCE RECOVERY, INC.
,
By:
Name Printed: Its:
THERM0 ELECTRON CORPORATION
By:
Name Printed:
Its:
SAN DIEGO GAS & ELECTRIC COMPANY
CITY OF CARLSBAD
By: Name Printed: Its:
CITY OF ESCONDIDO
By: Name Printed’: Its:
CITY OF OCEANSIDE
By:
Name Printed:
Its:
By: Name Printed:
Its:
[Signatures continue on next page.]
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acknowledges that there are no representations, warranties,
agreements, arrangements or understandings other than as expressly
contained in this AGREEMENT.
THE FOREGOING IS APPROVED AND AGREED TO:
NORTH COUNTY RESOURCE
RECOVERY ASSOCIATES
By:
Name Printed:
Its:
TEC ENERGY CORPORATION
By: Name Printed:
Its:
SAN MARCOS RESOURCE RECOVERY,
INC .
I
By: I Name Printed:
Its:
THERM0 ELECTRON CORPORATION
Name Printed: Its:
SAN DIEGO GAS & ELECTRIC
COMPANY
By: Name Printed:
Its:
CITY OF ENCINITAS
By:
Name Printed: Its:
CITY OF CARLSBAD
By:
Name Printed:
Its:
CITY OF ESCONDIDO n
CITY OF OCEANSIDE
By:
Name Printed:
Its:
[Signatures continue on next page.]
-1 1-
acknowledges that there are no representations, warranties,
agreements, arrangements or understandings other than as expressly
contained in this AGREEMENT.
THE FOREGOING IS APPROVED AND AGREED TO:
NORTH COUNTY RESOURCE
RECOVERY ASSOCIATES
CITY OF ENCINITAS
By : Name Printed:
Its:
TEC ENERGY CORPORATION
By: Name Printed:
Its:
SAN MARCOS RESOURCE RECOVERY, INC.
I
By: I Name Printed:
Its:
By:
Name Printed:
Its:
CITY OF CARLSBAD
By: Name Printed:
Its:
CITY OF ESCONDIDO
By :
Name Printed:
Its:
THERM0 ELECTRON CORPORATION CITY OF OCEANSIDE
By: By: Name Printed: Name' Printed : f%, Y, &/,d&,-
Its: Its: /AH 't x/ c>* 4% m r:,
/ I / ** I
SAN DIEGO GAS & ELECTRIC COMPANY
By: Name Printed: Its:
[Signatures continue on next page.]
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L
APPROVED AS TO FORM AND CONTENT:
GRAHAM & JAMES
Attorneys for North County
Resource Recovery Associates,
TEC Energy Corporation, San Marcos Resource Recovery, Inc. and Thermo Electron Corporation
By: David S. Elkins, Esq.
LAW OFFICES OF D. DWIGHT WORDEN
D. Dwight Worden, Esq. Terry M. Gibbs, Esq. Attorneys for the City of Endnitas, the City of Carlsbad, the City of
Escondido and/or the City of Oceanside
By:" Terry M. GkJbs, Esq.
SELTZER CAPLAN WILKINS
& McMAHON
A Professional Corporation,
Attorneys for San Diego Gas
& Electric Company
By: Gerald L. McMahon, Esq.
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acknowledges that there are no representations, warranties,
agreements, arrangements or understandings other than as expressly
contained in this AGREEMENT.
THE FOREGOING IS APPROVED AND AGREED TO:
NORTH COUNTY RESOURCE
RECOVERY ASSOCIATES
By: Name Printed: Its:
TEC ENERGY CORPORATION
Name Printed:
Its:
SAN MARCOS RESOURCE RECOVERY,
INC .
By: Name Printed:
Its:
THERM0 ELECTRON CORPORATION
By:
Name Printed:
Its:
SAN DIEGO GAS & ELECTRIC
COMPANY
\
CITY OF ENCINITAS
By: Name Printed:
Its:
CITY OF CARLSBAD
By: Name Printed:
Its :
CITY OF ESCONDIDO
By: Name Printed: Its:
CITY OF OCEANSIDE
By: Name Printed: Its:
Its: Senior Vice President,
Marketing and Resource Development
[Signatures continue on next page.]
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& APPROVED AS TO FORM AND CONTENT:
GRAHAM & JAMES Attorneys for North County Resource Recovery Associates,
TEC Energy Corporation,
San Marcos Resource Recovery, Inc. and Thermo Electron Corporation
By: David S. Elkins, Esq.
LAW OFFICES OF D. DWIGHT WORDEN
D. Dwight Worden, Esq.
Terry M. Gibbs, Esq. Attorneys for the City of Endnitas, the City of-Carlsbad, the City of Escondido and/or the City of Oceanside
By: Terry M. Gibbs, Esq.
~ SELTZER CAPLAN-WILKINS
& McMAHON
A Professional Corporation,
Attorneys for San Diego Gas
& Electric Company / &4yd-
L. McMahon, Esq.
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I
acknowledges that there are no representations, warranties,
agreements, arrangements or understandings other than as expressly
contained in this AGREEMENT.
THE FOREGOING IS APPROVED AND AGREED TO:
NORTH COUNTY RESOURCE
RECOVERY- ASSOCIATES
>- I By: _-. L 1 ( ,,\
Name Printed: -Jerry Davis lts: Authurizea off. icer
TEC ENERGY CORPORATION
Its: ! ; President
SAN MARCOS RESOURCE RECOVERY,
By INC;?-- : (; '-
Name Priptkd: Jerry Davis Its: / President
THERM0 ELECTRON CORPORATION
I, --\ / ';
-_ '\ I j By: -.*-\. ,c.-
Name Prfnted: Jerry Davis
Its: .',/ Vice President
SAN DIEGO GAS & ELECTRIC
COMPANY
Bv :
Name Printed: Its:
CITY OF ENCINITAS
By:
Name Printed:
Its:
CITY OF CARLSBAD
By:
Name Printed:
Its:
CITY OF ESCONDIDO
By: Name Printed: Its:
CITY OF OCEANSIDE
By: -
Name Printed: - Its:
[Signatures continue on next page.]
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,
APPROVED AS TO FORM AND CONTENT:
GRAHAM & JAMES
Attorneys for North County
Resource Recovery Associates,
TEC Energy Corporation,
San Marcos Resource Recovery, Inc. and Thermo Electron
L'
LAW OFFICES OF D. DWIGHT WORDEN D. Dwight Worden, Esq. Terry M. Gibbs, Esq. Attorneys for the City of Enchitas, the City of Carlsbad, the City of Escondido and/or the City of Oceanside
By: Terry M. Gibbs, Esq.
SELTZER CAPLAN WILKINS
& McMAHON
A Professional Corporation, Attorneys for San Diego Gas
& Electric Company
By: Gerald L. McMahon, Esq.
-1 2-
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STIPULATION
It is hereby stipulated between the Cross-defendant NCRRA and the
Cross-complainant SDG&E, through their respective counsel, that the
foregoing Final Judgment may be rendered by the Court on SDG&E's Cross-
complaint, and may be entered. NCRRA and SDG&E waive all rights to a
statement of decision, to new trial, to appeal and to otherwise
challenge the Final Judgment, and also waive notice of entry thereof.
DATED : hi/ 17 , 1992
GRAHAM & JAMES SELTZER CAPLAN WILKINS & McMAHON A Professional Corporation
By: Gerald L. McMahon, Esq.
Attorneys for Cross-complainant
San Diego Gas & Electric Company North County Resource Recovery Associates
4
Y
,--
A
I SUPERIOR COURT OF THE STAm OF CALIFORNIA
l NORTH CQUNTY RESOURCE RECOVERY 1 CASE NO. 634642
I ) STIPULATION AND FINAL JUDGMENT ASSOCIATLS I 1
1
V. 1
Plaintiff, ) ON CROSS-COMPLAINT
1 Trial Rate: .. April 171 1992
1 Di Figlia
$AN DIEGC) GAS & ELECTRIC 1 Dept: 17
COMPANY, ) T/C hdge: Hon. Vincent F.
Defendant.
I AND RELATED CROSS-ACTIONS. 1
It appearing from the files and records of this matter that:
I. On March 4, 1991, PLainti€f and Cross-Defendant North
County ReSQurCe Recovery Associates ("NCRRA") , filed its Complaint for
Declaratory Relief in the Superior C4wt of the Skate of California in
and for the County of San Diego in Case No. 634642 (the "ACkion") in
connection with a Power Purchase Agreement executed in 1983 between the
Defendant and CxmSIs-COmplahant San Diego Gas & Electzic Company
("SDG&E") and NCRRA [hereinafter the "PPA") . The PPA pzovided, among
other things, that NCRRA would construct a waste-to-energy facility at
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the San Marcos landfill in Northern San Diega County (the "wT6
Facility"} and that $DG&E would purchase power generated by the trPE
Facility under terms as more fully set forth in that PPA;
2. On October 25, 1991, SDG&E responded to NCRRR'S
Complaint, denying its material allegations and sekting forth
affirmative de€enses;
3. Also on October 25, 1991, SDG&E! filed its Crosa-
complaint For Declaratory Relief in the Action, alleging that since
exccutictn af the PFA in 1983, NCRRA had failed Co perform its
obligations to construat and operate tho WTE Facility; that NCWA had
failed unjustifiably to petform its obligations under the PPA within
a reasonable period of time; and, that events and circumstances
occurring since execukion of khe PPA, including NCRRA's own conduct,
had rendered the PPA invalid, unenforceable, commercially infeasible
and contrary to the public interest. SDGIE further alleged in ICs
Cross-complaint that it had performed its duties and responsibilities
under the PPA, excepting those excused by NCPRA'S failures Ca perform;
4. On November 21, 1991, NCRRA fesponded to SDG&E's Cross-
camplaint, denying its material allegations and setting forth
affirmative defenses;
5. NCRRA has Piled with the Clerk of this Court: a Request
for Entry of Dismissal of its Complaint for Declaratory Relief, with
prejudice. Pursuant: thereto digmiseal has been entered by the Clerk;
6. On November 8, 1991 a Complaint: in Intervention was
filed in the Action, by the City of Encinitas,.,the City of Carisbad,
the City of Encondido, and the City o€ Oceanside (the "INTERVENOR
CITIES"), seeking, among other things, a declaration that: the PPA was
invalid or termfnated. On December 13, 1991, NCRRA served its Verified I
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ET 'd
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Answer and Affirmative Defense$ to the Complaint in Zntervenkion; and,
on December 16, 1991, SDGBIE filed its Answer and A%€irmative Defenses
to the Complaint in Intervention;
7. The INTERVENOR CITIES have Eiled with tho Clerk of this
Court a Request for Entry of Dismissal o€ their Complaint in Inkerven-
Lion, with prejudice. Pursuant thereto dismissal has been entered by
the Clerk;
8. Cross-Defendant NCRRA has stipulated to entzy of Final
Judgment in favor of Cross-Complainant SDGI3 on its Cross-complaint,
8s set €orth below;
9. The following Judgment will dispose of all remaining
parties and causes of action; and,
10. Good cause appearing,
IT IS HEREBY ORDERED, BDJUDGED AND DECREED that:
1. Final Judgment is rendered in favor of Crass-complainant
SW&E on its Cross-complaint, to wit: The Power Purchase Agreement
executed in 1983 between NCRRA and SDGBE is unenforceable and is
terminated without obligation on the part of SDGSE; and,
2. Each party shall bear its own costa oE suit including its
attorneys' fees.
DATED : , 1992
YUDGE OF TK6 SUPERIOR COURT
: 01
r Name, Address and Telephone No. of AttorneyW
DAVID S. ELKINS, ESQ. (SB#148077)
GRAHAMCJAMES One Maritime Plaza, Suite 300
San Francisco, California 94111
Plaintiff and Cross-Defdant Nom COUNTY RlsouRamm Attorney(s) for . ......................
(Name of branch court, if any)
Space Below for Use of Coun Clerk Only
Plaintiff(s) :
Defendantb):
Nom COUNTY REsoURcE REcovmY ASSOCIATES
SAN DIW GAS & ELECTRIC
COMPAM!
CASE NUMBER 634642
REQUEST FOR DISMISSAL
TYPE OF ACTION
a Motor Vehicle 0 Other
- 7 Personal Injury. Property Damage and Wrongful Death:
R Domestic Relations 0 Eminent Domain L.
TO THE CLERK: Please dismiss this action as follows: (Check applicable boxes.)
1. With prejudice [3 Without prejudice
2. 0 Entire action a Complaint only Petition only 0 Cross-complaint only 3 Other: (Specify)' 0 This disposes of all parties and causes of action.
*It dismissal request& is of specified parties only. of specified causes of action only or of specified crosa-complain\s only. so stale and identifv the Darlies. causes of action or cross-comDlainls No* COUNTY RES- REcavERY ASSOCIATES
to be dismissed. (Type or print attorney(s) name(s))
SELTZER CAPLAN tCLKINS b 1rlChllA"
TO THE CLERK: Consent to the above dismissal is hereby given." A Professional Corporation
............................................... ra S Dated: BY: .
"When a Cross-complaint [or ReSpOnW (Marriage) seeking affirma- A%rnOy+8 fkr'. .=a .~ro~s~l.a-~.
SIW DIEGO GAS & ELEICTRIC CCNPANY
(Type or print attorney(,) name(s))
tive relief) is on file, the aItorney(s) for the crorr-complainant (reapondent) musl sign this consent when required by CCP
581(1), (2) or (5).
(To bo completed by clerk)
0 Dismissal entered as requested on ...................................................................................
0 Dismissal entered on .................................... .as to only .................................................
0 Dismissal not entered as requested for the following reason(s). and *'torney(s) notified on ...................................
KENNETE E. MAXTONE, Clerk
............................................... Dated BY , Deputy
Form Adopled by Rule 962 01
The Judicial Council of Calilornia
Revised Effective July 1. 1972 REQUEST FOR DISMISSAL
- - ,. t
r
Name, Address and Telephone h,. ur Attorneyk) I-
D. IXtGH'I! WRDm (S?3#63236)
TI.=Iw M. GIBE (SB#140737)
LAW OFFICES OF DWIGHT WXDEN 740 Lams Sante Fe Drive, Suite 102
Solana Beach, CA 92075
Space tllow for Use of Court Clerk Only
CITIES OF am, ENCINITAS, Attorney@) for . EscoNflIDcI.. .OCEANSIDE.. ........ *
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIECO
(Name of branch court, if any)
(Abbreviated Title)
CASE NUMBER 634642
REQUEST FOR DISMISSAL
TYPE OF ACTION
0 Motor Vehicle 0 Other
E Personal Injury. Property Damage and Wrongful Death:
0 Domestic Relations @ Other: (Specify) .-la% .b. .?r?$'?n???fion..
0 Eminent Domain
TO THE CLERK: Please dismiss this action as follows: (Check applicable boxes.)
1. With prejudice 0 Without prejudice
2. 0 Entire action 0 Complaint only 0 Petition only 0 Cross-complaint only a Other: (Specify)'Complaht in Intervention 0 This disposes of all parties and causes of action.
LAW OFFICES OF D. DWIGHT WORDEN
D. DWIGHI'WORDEN, ESQ.
TERRYM. GIBBS, ESQ. L
I -
Dated: . 74 .! .4.. .7. ....... .I. 1992.. ............ By:
'If dismissal requested is of specified parties only, of specified causes of action only or of specified cross-complainls only, so slate and identify the patties, causes of action or cross-complaints
Attorney(s) for. .c . OF. me I. .FVCINIT%. t ... ID0 and OCEANSIDE
to be dismissed. (Type or print attorney(s) name(s))
TO THE CLERK: Consent to the above dismissal is hereby given."
Dated: ...............................................
"When a cross-complainl (or Response (Marriage) seeking atfirma- Attorney(s) for .............................................
live relief) is on file, the 'attorney(s) for the cross-complainant (respondenl) must sign this consent when required by CCP
Sal(1). (2),or (5). (Type or print attorney(s) name(s))
(To be completed by clerk)
0 Dismissal entered as requested on ...................................................................................
0 Dismissal entered on .................................... .as to only .................................................
0 Dismissal not entered as requested for the following reason(s), and m'torney(s) notified on ...................................
KENNETE E. MAXTONE, Clerk
............................................... Dated BY . Deputy
Form Adopted by Rule 982 01 The Judicial Council of California Revised Effective July 1. 1972 REQUEST FOR DISMISSAL CCP 581. otc.:
CaI. Rule. of Court, Rule 1233 SUP CY s3 (1-9Ul