HomeMy WebLinkAbout2011-06-07; City Council; 20575; SETTLEMENT SAN DIEGO COASTKEEPER AND CERFCITY OF CARLSBAD - AGENDA BILL 10
AB# 20,575
MTG' 6/7/11
DEPT. CA
REPORTING OUT THE SETTLEMENT
AGREEMENT BETWEEN SAN DIEGO
COASTKEEPER, COASTAL
ENVIRONMENTAL RIGHTS
FOUNDATION (CERF) AND CITY OF
CARLSBAD, ET AL
DEPT. DIRECTOR
CITY ATTORNEY
CITY MANAGER
RECOMMENDED ACTION:
There is no action to be taken by the City Council.
ITEM EXPLANATION:
As previously authorized by the City Council, this office has associated with Attorney Jan
Driscoll of the law firm of Allen Matkins as special counsel to defend the City and the Carlsbad
Municipal Water District in the five lawsuits challenging the proposed Poseidon desalination
plant. The parties have now settled all but one of the lawsuits and this Settlement Agreement
constitutes a final judgment and bars any future action from Coastkeeper and CERF on issues
that were or could have been raised. Additionally, Coastkeeper has agreed in this Settlement
Agreement not to seek Supreme Court review of the State Lands Commission case (previously
dismissed).
This item satisfies the Brown Act requirement to report the fact of a settlement and makes the
terms and conditions of the settlement available to the public.
FISCAL IMPACT:
Under the agreement with Poseidon Resources LLC to indemnify the City, there is no fiscal
impact associated with this settlement agreement.
ENVIRONMENTAL IMPACT:
Reporting out the fact of Settlement is not a "project" within the meaning of CEQA and therefore
environmental review is not required pursuant to CEQA Regulation 15061(b)(3).
EXHIBITS:
1. Settlement and Release Agreement on file with the City Clerk.
DEPARTMENT CONTACT: Ronald R. Ball 760-434-2891 ron.ball@carlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED *
D
D
D
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER -SEE MINUTES
REPORT WAS RECEIVED
D
D
D
D
D
SETTLEMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of April 21 2011, by
and among San Diego Coastkeeper ("Coastkeeper"), Coastal Environmental Rights Foundation
("CERF") (collectively, "Environmental Parties"), Poseidon Resources (Channelside) LLC,
Poseidon Resources Corporation, and Poseidon Water LLC (collectively, "Poseidon"), the City
of Carlsbad ("City"), Cabrillo Power I LLC ("Cabrillo"), Sweetwater Authority, Valley Center
Municipal Water District, Santa Fe Irrigation District, Olivenhain Municipal Water District,
Rincon del Diablo Municipal Water District, Rainbow Municipal Water District, Carlsbad
Municipal Water District, and Vallecitos Water District (collectively, "Water Districts"), on the
following terms and conditions:
RECITALS
A. The Carlsbad Desalination Project ("Project") has been reviewed and approved by the
City and various state agencies. The Environmental Parties have expressed concerns with
regard to the approval of the Project and have brought various lawsuits challenging
Project approvals, one of which has yet to be resolved on the merits: Coastal
Environmental Rights Foundation v. City of Carlsbad, et al., San Diego County Superior
Court Case No. 37-2009-00061008-CU-TT-NC ("City CEQA Addendum Case").
B. Coastkeeper and Surfrider Foundation ("Surfrider") in 2008 voluntarily dismissed the
case: Surfrider Foundation v. California Regional Water Quality Control Board, San
Diego Region, et al., San Diego County Superior Court Case No. 37-2008-00091983-
CU-WM-CTL ("Dismissed Regional Board Case"). The Court awarded costs to Poseidon
and against Coastkeeper and Surfrider for this matter in the amount of $ 1,070.00.
C. Coastkeeper and Surfrider unsuccessfully challenged aspects of the Project in the case:
Surfrider Foundation v. California State Lands Commission, et al., San Diego County
Superior Court Case No. 37-2008-00092607-CU-WM-CTL (including both the Superior
Court and Appellate Actions, collectively "SLC Case"). Poseidon was awarded costs by
the Superior Court in the amount of $3,212.73. Coastkeeper alone appealed the SLC
Case, but was unsuccessful. Coastkeeper will be liable for an as-of-yet unspecified sum
SDY775806.1
of costs on appeal. The time-period for filing a petition for review in the California
Supreme Court has expired.
D. The parties to this agreement now wish to settle the merits of the CEQA Addendum Case
and, as to the Environmental Parties, all remaining aspects of the Dismissed Regional
Board Case and SLC Case. In exchange for Coastkeeper's and CERF's agreement to
dismiss the CEQA Addendum Case and forego seeking Supreme Court review of the
SLC Case, Poseidon, City, Cabrillo, and Water Districts agree to waive any and all
claims to litigation costs or fees to which they are or may be entitled from the
Environmental Parties related to the Dismissed Regional Board Case, the SLC Case, and
the City CEQA Addendum Case.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby
incorporated by reference, and of the mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, IT IS
HEREBY AGREED as follows:
1. Dismissal Of Pending Lawsuit With Prejudice and Agreement Not to Appeal.
a. Within three (3) business days of the Effective Date of this Agreement, CERF
and Coastkeeper will file a request for dismissal of the City CEQA Addendum Case captioned
Coastal Environmental Rights Foundation v. City of Carlsbad, et al., Case No. 37-2009-
00061008-CU-TT-NC, with prejudice, in the San Diego County Superior Court.
b. CERF and Coastkeeper understand and agree the dismissal with prejudice of
the City CEQA Addendum Case will constitute a final judgment on the merits of the action and
will bar any future action on issues which were or could have been raised under the doctrines of
res judicata and collateral estoppels and pursuant to Boeken v. Phillip Morris USA, Inc. 48, Cal.
4th 788, 793 (2010).
c. Coastkeeper agrees not to seek Supreme Court review of the SLC Case.
2. Poseidon's. Cabrillo's, City's, and Water Districts' Waivers of Litigation Costs.
Poseidon, Cabrillo, City, and Water Districts hereby waive any claim to litigation costs or
Page 2 of8
SDY775806.1
attorneys' fees that each entity may have, respectively, from the Environmental Parties only
arising from the Dismissed Regional Board Case, the SLC Case, and the City CEQA
Addendum Case.
3. Representations and Warranties. The parties to this agreement represent and warrant
to each other as follows:
a. The terms and conditions of this Agreement are the result of arm's-length
negotiation between the Parties;
b. This Agreement has been carefully read by each of the Parties and their
respective counsel, the contents thereof are known and understood by each of the Parties, and
this Agreement is signed freely by each Party executing it;
c. The Parties to this Agreement have the sole right and exclusive authority to
execute this Agreement and have not sold, assigned, hypothecated, pledged or otherwise set over
to any other person or entity any claim, lien, demand, suit, right, action, proceeding, cause of
action, obligation, damage or liability covered hereby;
d. The person who signs this Agreement for a Party has the authority to bind that
Party and to act on its behalf; and,
e. The representations and warranties contained in this Agreement are deemed to
and do survive the execution hereof.
4. No Admission of Liability. This Agreement is not an admission of liability. The
purpose of this Agreement is to settle claims which are denied and contested, or are potential,
and this Agreement is the result of a compromise over such contested claims. Nothing
contained herein shall be deemed as an admission of any kind to any other party.
5. Modifications. This Agreement may not be amended, canceled, revoked or
otherwise modified except by written agreement signed by all of the Parties to this Agreement.
6. Mutual Cooperation. The Parties agree to cooperate in good faith to carry out the
provisions and intent of this Agreement, including the timely execution and delivery of any
other documents necessary to carry out its provisions. Each of the Parties shall execute and
deliver to the others all such other further instruments and documents, and take all other such
Page 3 of8
SDY775806.1
<t
actions, as may be reasonably necessary to carry out the terms and provisions of this Agreement
and secure to the others the full and complete enjoyment of their respective rights end
privileges hereunder. The Parties agree to meet and confer in good faith to try to resolve any
conflicts arising under this Agreement prior to bringing any actions in court to enforce the
Agreement.
7. Binding Nature of this Agreement. This Agreement shall be binding upon, and shall
inure to the benefit of, the Parties, their respective heirs, representatives, successors, trustees in
bankruptcy, administrators, executors, conservators, assigns, affiliates, agents and employees,
and their respective successors and assigns, and each and every entity which now or ever was,
or will ever be, a division, parent, successor, predecessor, subsidiary or related entity of any
kind for each Party and its respective legal successors and assigns.
8. Parties To This Agreement And No Third Party Beneficiaries. The only parties to
this Agreement are the Parties which are named in this agreement and which have executed the
Agreement as listed below, or any entity which may be formed in the future which is controlled
by the parties to this Agreement, and there are no third party beneficiaries to this Agreement.
9. Sole and Final Agreement. Except as otherwise specifically provided herein, this
Agreement is intended to be and is the final expression of the Agreement between the Parties
with respect to the subject matter of this Agreement, and supersedes and fully and completely
extinguishes, any prior understandings or agreements by or between the Parties, whether oral or
written, express or implied.
10. Notices. Except as otherwise specifically set forth herein, all notices or other
communications specifically required or permitted to be given under this Agreement shall be in
writing and personally delivered or sent by certified mail, return receipt requested and postage
prepaid, or sent by reputable overnight courier (such as Fed Ex), or by facsimile with copies
sent by overnight courier or U.S. Postal Service the following day, to the addresses or facsimile
numbers set forth below. Any Party may at any time change its address or facsimile number for
the delivery of notice upon five (5) days' written notice to the other Parties.
Page 4 of 8
SDY775806.1
Coastal Environmental Rights Foundation
C/O Executive Director
1140 South Coast Highway 101
Encinitas, CA 92024
Ph. 760-942-8505
Fx. 760-942-8515
San Diego Coastkeeper
C/O Executive Director
2825 Dewey Road, Suite 200
San Diego, CA 92106
Ph. 619-758-7743
Fx. 619-758-7744
City of Carlsbad
Carlsbad Municipal Water District
Vallecitos Water District Jan Driscoll
ALLEN MATKINS
Jan Driscoll
501 West Broadway, 15th Floor
San Diego, CA 92101-3541
Ph. 619.233.1166
Fx. 619.233.1158
Poseidon Resources (Channelside) LLC
Poseidon Resources Corporation
Poseidon Water LLC
LATHAM & WATKINS LLP
Christopher W. Garrett
600 West Broadway, Suite 1800
San Diego, CA 92101
Ph. 619-236-1234
Fx. 619-696-7419
Cabrillo Power I LLC
SHEPPARD MULLIN RICHTER & HAMPTON LLP
Dana J. Dunwoody
501 West Broadway, 19th Floor
San Diego, CA 92101-3598
Ph. 619.338.6500
Fx. 619.234.3815
Sweetwater Authority; Valley Center Municipal District; Santa Fe Irrigation District;
Olivenhain Municipal Water District; Rincon Del Diablo Municipal Water District;
Rainbow Municipal Water District
Page 5 of8
SDY775806.I
BEST BEST & KRIEGER
Melissa Woo
655 West Broadway, 15th Floor
San Diego, CA 92101
Ph. 619.525.1300
Fx. 619.233.6118
11. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, and together shall constitute one and the same instrument, having the
same force and effect as if a single original had been executed by all Parties. Furthermore, this
Agreement may be executed and delivered by the exchange of electronic facsimile copies or
counterparts of the signed documents, which facsimile copies or counterparts shall be binding
upon the Parties.
12. Time is of the Essence. Time is of the essence for this Agreement.
13. Governing Law and Jurisdiction. This Agreement shall be construed and enforced
under the laws of the State of California without regard to conflicts of law principles.
14. Headings and Cross-References. The headings and captions used in this Agreement
are for convenience and ease of reference only and shall not be used to construe, interpret,
expand or limit the terms of this Agreement. All cross-references in this Agreement, unless
specifically directed to another agreement or document, shall refer to provisions in this
Agreement and shall not be deemed to be references to any other agreements or documents.
15. No Duress. This Agreement is executed voluntarily by each of the Parties without
any duress or undue influence on the part of, or on behalf of any of them. Each of the Parties to
this Agreement has read and fully understands the meaning of each provision of this Agreement
and has relied on the independent advice and representation of legal counsel in entering into
this Agreement.
16. Construction. This Agreement has been reviewed and edited by the Parties and their
legal counsel, and no presumption or rule that ambiguities shall be construed against the
drafting party shall apply to the interpretation or application of this Agreement.
17. Effective Date. This Agreement shall become effective upon execution by all
parties, or their authorized representatives.
Page 6 of8
SDY775806.1
7
18. Attorneys Fees And Costs For Prevailing Party. In any action for enforcement or
breach of this agreement, the Court shall award attorneys fees and costs to the prevailing party.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of
the date hereinafter written.
Date:
Date:
Date:
Date:
Sara Honadle
Programs Director
Coastal Environmental Rights Foundation
Gabriel Solmer
Executive Director
San Diego Coastkeeper
Marco A. Gonzalez
COAST LAW GROUP LLP
Attorneys for Coastal Environmental Rights
Foundation and San Diego Coastkeeper
Jan Driscoll
ALLEN MATKINS LECK GAMBLE
MALLORY LLP
Attorneys for City of Carlsbad, Vallecitos Water
District and Carlsbad Municipal Water District
Date: ^/IS/^] \ j/^/\
Chiastopher W. Garrett
L/THAM & WATKINS LLP
Attorneys for Poseidon Resources (Channelside)
LLC, Poseidon Resources Corporation, and
Poseidon Water LLC
Page 7 of 8
SDY775806.1
18. Attorneys Fees And Costs For Prevailing Party. In any action for enforcement or
breach of this agreement, the Court shall award attorneys fees and costs to the prevailing party.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of
the date hereinafter written.
Date:
Date:
Date:
Date:
Date:
Sara Honadle
Programs Director
Coastal Environmental Rights Foundation
Gabriel Solmer
Executive Director
San Diego Coastkeeper
Marco A. Gonzalez
COAST LAW GROUP LLP
Attorneys for Coastal Environmental Rights
Foundation and San Diego Coastkeeper
7 7 J^fi/Driscoll
: MATKINS LECK GAMBLE
VLLORY LLP
Attorneys for City of Carlsbad, Vallecitos Water
District and Carlsbad Municipal Water District
Christopher W. Garrett
LATHAM & WATKINS LLP
Attorneys for Poseidon Resources (Channelside)
LLC, Poseidon Resources Corporation, and
Poseidon Water LLC
Page 7 of 8
SDY775806.1
18. Attorneys Fees And Costs For Prevailing Party. In any action for enforcement or
breach of this agreement, the Court shall award attorneys fees and costs to the prevailing party.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of
the date hereinafter written.
Date:
S^Honadle
Programs Director
Coastal Environmental Rights Foundation
Date:
Date:
7 /
Gabriel Solmer
Executive Director
San Diego Coasikeeper
larco A. uonzaiez
COAST LAW GROUP!
Attorneys for Coastal Effvironmental Rights
Foundation and San Diego Coastkeeper
/if.
Jriscoll
MATKINS LECK GAMBLE
^LLORYLLP
Attorneys for City of Carlsbad, Vallecitos Water
District and Carlsbad Municipal Water District
Date:
Christopher W. Garrett
LATHAM & WATKINS LLP
Attorneys for Poseidon Resources (Channelside)
LLC, Poseidon Resources Corporation, and
Poseidon Water LLC
SD\775806.1
Page 7 of 8
Date:
SHEPPARD^RJtXIN RICHTER & HAMPTON
LLP
Attorneys for Cabrillo Power 1 LLC
Date:04/15/2011
Melissa Woo
BEST BEST & KRIEGER LLP
Attorneys for Sweetwater Authority, Valley Center
Municipal District; Santa Fe Irrigation District;
Olivenhain Municipal Water District; Rincon Del
Diablo Municipal Water District; Rainbow
Municipal Water District
Page 8 of 8
SD\775806.I