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HomeMy WebLinkAboutOC RECYCLINGINSURANCE NOT REQUIRED WORK MAY PROCEED N-2022-199 CLERK OF THE COUNCIL DATE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS N cli THIS SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS ("Agreement") is entered Lr) into as of the last date on the signature page (the "Effective Date"), by and between OC N RECYCLING, INC., a California corporation ("OC Recycling"), and RYAN BLOOM, an individual ("Bloom", and collectively with OC Recycling, the "OC Recycling Parties"), on the one hand, and CITY OF SANTA ANA, a California public agency ("City"), on the other. The OC Recycling Parties and the City are referred to singularly as a "Party" and collectively as the "Parties" to this Agreement. o.G�p(7olr� t'vn4C�(Sµ�� RECITALS A. In 2012, OC Recycling Parties removed 20,700 square feet of asphalt and replaced it with 20,700 square feet of concrete at an industrial facility ("Project") located at 1601 E. Edinger Avenue in the City of Santa Ana ("Property"), which is owned by 1601 East Edinger, LLC, a California limited liability company. B. On or about June 15, 2020, the City issued administrative citation PWNPDES-#001602 with a fine of $49,000 to OC Recycling Parties ("Citation"). The Citation alleged that OC Recycling Parties failed to implement the structural best management practices ("BMP") set forth in a water quality management plan approved in 2019 for the Project (the "2019 WQMP"). C. On or about July 20, 2020, OC Recycling Parties filed an administrative appeal of the Citation to a hearing officer ("Administrative Appeal"). D. On or about October 5, 2020, the hearing officer issued a decision on the administrative appeal of the Citation after first holding a hearing on or about September 30, 2020. E. On or about June 25, 2021, OC Recycling Parties initiated an action appealing the decision of the hearing officer to the Superior Court of California, County of Orange, in the action entitled Bloom v. City of Santa Ana, Case No. 30-2020-01166776-CU-JR-CJC ("the Superior Court Appeal"). F. By minute order dated February 11, 2021, the superior court ruled that the Project constituted a significant redevelopment, making City Municipal Code section 18-156 applicable. G. On June 25, 2021, the superior court entered judgment in the action ("Judgment"). The Judgment affirmed the hearing officer's decision, in part, finding that OC Recycling Parties violated City Municipal Code section 18-156 as set forth in the Citation. The court, however, reduced the fine from $49,000 to $27,000 and conditionally stayed $26,500 of the $27,000 fine until October 31, 2021, at which time the $26,500 would be permanently stayed if OC Recycling Parties implemented the approved 2019 WQMP by that date. If OC Recycling Parties failed to implement the approved 2019 WQMP by October 31, 2021, the Judgment provided for an automatic lift of the temporary stay and the total fine of $27,000 would be owed by OC Recycling Parties. H. On or about September 7, 2021, OC Recycling Parties filed a notice of appeal of the Judgment decision ("Appeal") in the Fourth District Court of Appeal, Division Three, Appellate Court Case No. G060674 ("Court of Appeal"). I. On or about September 24, 2021, the City filed a notice of cross appeal of the superior court's decision ("Cross -Appeal") in the Court of Appeal. J. As of the Effective Date, OC Recycling Parties have not implemented the 2019 WQMP. K. OC Recycling Parties have also submitted a revised WQMP ("Revised WQMP"). On February 16, 2022, the City provided comments on the Revised WQMP. OC Recycling Parties have not addressed City comments on the Revised WQMP. OC Recycling Parties intend to obtain approval of the Revised WQMP within the timeframes set forth in this Agreement to replace the 2019 WQMP. L. The Parties desire to enter into this Settlement Agreement to set forth the terms on which the Appeal and Cross -Appeal will be dismissed, making the Judgment final, and their mutual agreement regarding the timing and manner in which OC Recycling Parties will comply with the Judgment. NOW THEREFORE, in consideration of the promises and covenants contained herein, the receipt and sufficiency of which are acknowledged, the Parties agree as follows: 1. W MP OC Recycling Parties agree to implement the 2019 WQMP or address City comments on the Revised WQMP, obtain approval of the Revised WQMP, and implement the approved Revised WQMP in accordance with the Tasks, Milestones, and Schedule in Table 1. If OC Recycling obtains approval of the Revised WQMP by the deadline in Task No. 1.c, subject to any delays authorized by Paragraph 2.2, OC Recycling agrees to implement the approved Revised WQMP as the "Approved WQMP" in accordance with the remaining Tasks, Milestones, and Schedule in Table 1. If OC Recycling fails to obtain approval of the Revised WQMP by the deadline established in Task No. Lc in Table 1, subject to any delays authorized by Paragraph 2.2, OC Recycling agrees to implement the 2019 WQMP as the "ApprovedWQMP" in accordance with the remaining Tasks, Milestones, and Schedule in Table 1. OC Recycling Parties also recognize they must submit the following plans (the "Submissions") and obtain the following permits from the City before beginning constriction to implement either the Approved WQMP (the "City Approvals"): Submissions City Approvals Street Improvement Plan Encroachment Permit Grading / Surface Drainage Plan Grading Permit Electric Permit Application Electric Permit 2. WQMP Implementation. 2.1. Tasks, Milestones, and Schedule. Within twenty-one (21) calendar days after the Effective Date, OC Recycling Parties will begin implementing the Tasks, Milestones, and Schedule set forth in Table 1, below, except as provided in Paragraph 2.2 of this Agreement. Table 1. Tasks, Milestones, and Schedule Task Milestone No. Schedule a. Submit the Revised WQMP addressing all a. Within twenty-one (2 1) calendar City comments sent to OC Recycling Parties days after the Effective Date. on February 16, 2022 or notify the City that OC Recycling Parties have elected to implement the 2019 WQMP b. Submit revisions to the Revised WQMP b. Within fourteen (14) calendar addressing any additional comments from City days after receiving any additional on 2022 WQMP comments from the City. c. Obtain City approval of the Revised WQMP c. Within sixty-three (63) days after or implement the 2019 WQMP. the Effective Date. See paragraph 2.2.2 for delay provision. 2. a. Submit all Submissions to City. a. Within fourteen (14) calendar days after Task No. Le, b.Submit revisions to Submissions addressing b. Within fourteen (14) calendar any City comments on the Submissions days after receiving comments from the City. c. Obtain all City Approvals c. Within sixty (60) calendar days after after Task No. l.c. See paragraph 2.2.2 for delay provision. d. Submit evidence that OC Recycling Parties d. Within fourteen (14) calendar have procured a contractor to implement the days after Task No. 2.c. Approved WQMP. Contractor working within the Public Right -Of -Way must have a valid license that satisfies City license requirements. e. Submit evidence that OC Recycling Parties e. Within fourteen (14) calendar have ordered the approved proprietary days after Task No. 2.d. biotreatment BMP system, piping, catch basin inlet, and pump system, to the City. a. Request a pre -construction meeting on the a. Within ten (10) business days Property with City and construction contractor after receiving all materials ordered performing work. in Task No. l.d. See paragraph 2.2.1 for delay provision. b. Hold pre -construction meeting on the Property with City and construction contractor performing work. b. At the time scheduled during Task No. 3.a, which must be before beginning any work to implement the approved 2019 or Revised WQMP. See paragraph 2.2.2 for delay provision. 4. Submit a notice of commencement of work. Within ten (10) business days after the pre -construction meeting in Task No. 3.b and prior to beginning any work to implement the approved 2019 or Revised WQMP. 5. Start construction (contractor mobilization and Within ten (10) business days after demolition). submitting a notice of 6. Submit inspection request(s) to City prior to backfilling the approved proprietary biotreatment BMP system, pump system, and storm drain infrastructure. These inspection request(s) are in addition to any other required inspections such as a City Public Works Agency inspection of any encroachment into the public right of way way or Planning and Building Agency related to the Electrial Permit. commencement required by Task No. 4. Within forty (40) days after starting construction under Task 4 and at least ten (10) business days prior to any required inspection(s). See paragraph 2.2.2 for delay provision. Complete repair/correction requests issued by Within thirty (30) days after the City City and call for reinspection issues the repair/correction request. See paragraph 2.2.2 for delay provision. 8. Complete implementation of the Approved Within thirty (30) days after the WQMP and obtain a passing final inspection completion of Task No. 6, or, if a from City. repair/correction request is issued under Task 7, within five (5) days after the deadline established for Task No. 7, whichever is later. 2.2. Delay. The Parties anticipate that there may be delays in the approval of the Revised WQMP or in implementation of the Approved WQMP due to approvals, inspections, or submissions required by the City or delays in the delivery of materials. In the event OC Recycling Parties timely complete Task Nos. La, l.b, 2.a, 2.b, 2.d, 2.e, 3, 4, 5, 6, and 7 but are delayed in timely completing Task Nos.1.c, 2.c, or 8, due to any of the following, then the deadlines for completing Task No. Lc, 2.c or 8 shall be extended by the duration of such delay, provided the following conditions are satisfied: 2.2.1. If the delivery of materials ordered under Task No. 2.e is delayed more than ninety (90) days after the date of order, OC Recycling Parties shall: (i) provide notice of the delay to the City within five (5) business days of learning of such delay; (ii) diligently pursue any alternative sources of procuring materials; and (iii) provide a weekly update on the status of the materials, the nature of delay, the estimated delivery date, and steps taken to mitigate the delay, including copies of correspondence from the vendors. 2.2.2. If the delay is due to City staffs lack of response for more than fourteen (14) calendar days after OC Recycling Parties complete Task Nos. La, Lb, 2.a, or 2b, to City staffs lack of availability for more than ten (10) business days between Task Nos. 3.a and 3.b, or a delay of more than ten (10) days after a request for an inspection required under Task No. 6 or reinspection under task No. 7, OC Recycling Parties shall, within ten (10) business days of learning of such delay, provide written notice to the City of the delay to the schedule. City and OC Recycling Parties shall work diligently to schedule the meetings and inspections. 2.3. No Delay. The schedule for completing Task Nos.l.c, 2.c and 8 shall not be extended by the duration of any delay caused by OC Recycling Parties' failure to fulfill its obligations in accordance with the Schedule in Table 1. 3. Payment. 3.1. Within thirty (30) days after the Effective Date, OC Recycling Parties will deliver a check made payable to the City of Santa Ana in the amount of Five Hundred Dollars ($500) to 20 Civic Center Plaza (M-13), Santa Ana, CA 92701 ("Payment Amount"). In the alternative, OC Recycling Parties may transfer the Payment Amount by wire transmission using the wire instructions provided in Exhibit A. 3.2. The remaining portion of the fines addressed and assessed in the Judgment are hereby by waived by the City, it being understood that the City's sole remedy shall be the specific enforcement of OC Recycling Parties' obligations under this Agreement. However, OC Recycling Parties acknowledge and agree that OC Recycling Parties' failure to timely meet its obligation under Paragraph 3.1 or the schedule for any milestone in Table 1, subject to an authorized delay under Paragraph 2.2, will subject OC Recycling Parties to a daily fine of $500.00. OC Recycling hereby waives its right to appeal any fine issued under this Paragraph 3.2. 4. Notice of Settlement. In accordance with California Rules of Court, rule 8.244(a), within two (2) business days after the Effective Date, OC Recycling Parties will prepare and sign a Joint Notice of Settlement in substantially the same form as the notice attached to this Agreement as Exhibit B and will send the signed notice to counsel for City. Counsel for City will, within three (3) business days after receiving the signed notice, countersign the notice and file the notice with the Court of Appeal. 5. Stipulation to Dismiss Appeal. In accordance with California Rules of Court, rule 8.244(c), within thirty (30) calendar days after City submits the Notice of Settlement pursuant to Paragraph 4 of this Agreement, OC Recycling Parties will prepare a Stipulation for Dismissal and Proposed Order ("Stipulation") in substantially the same form as the stipulation and order attached to this Agreement as Exhibit C and will send the Stipulation to counsel for City. Counsel for City will countersign and file the Stipulation with the Court of Appeal within fifteen (15) calendar days after receipt of the Stipulation. 6. Acknowledgement of Satisfaction of Judgment. Within ten (10) business days after both the City has received the Payment Amount and OC Recycling Parties have obtained a satisfactory final inspection of the Approved WQMP implementation in accordance with standard City procedures, the City will complete and submit an Acknowledgement of Satisfaction of Judgment using Judicial Council of California Form EJ- 100 or a substantially similar form. 7. Release of Claims. Each Party acknowledges and agrees that it has made an investigation of the facts pertaining to this Agreement. In consideration of the various promises and undertakings, obligations, warranties and representations of each of the Parties to this Agreement, and contingent upon each Party's timely performance of them, OC Recycling Parties and the City each hereby release and forever discharge the other, and each of their stockholders, affiliates, predecessors, successors, directors, trustees, officers, employees, lawyers, accountants and other representatives, including but not limited to 1601 East Edinger, LLC, a California limited liability company, from any and all liability whatsoever, including all claims, demands, and causes of action, of every nature, known or unknown, from the beginning of time until the Effective Date, arising out of, based upon or relating to the 2019 WQMP, any prior WQMP related to the Property or approvals related to those WQMP's, the Citation, the Administrative Appeal, the Superior Court Appeal, Judgment, Appeal, and Cross -Appeal. In making theses releases, the Parties expressly waive their rights under California Civil Code section 1542, which provides as follows: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. 8. Future Code Violations on Proper City reserves the right to pursue all available legal remedies for all future violations of the City Municipal Code on the Property, including but not limited to failure to maintain the proprietary biotreatment BMP system per the Approved WQMP. Nothing in this Agreement shall be construed to limit City's legal authority or ability to institute proceedings against the Property for any code violations found to be occurring after the Effective Date. 9. Notices. Any notice or other communication provided or required by this Agreement not otherwise directed to a particular person or address shall be sent by first class mail and with a copy by email to the following addresses: TO CITY: NPDES Manager City of Santa Ana 20 Civic Center Plaza (M-22) Santa Ana, CA 92701 Executive Director Public Works City of Santa Ana 20 Civic Center Plaza (M-21) Santa Ana, CA 92701 City Attorney's Office City of Santa Ana 20 Civic Center Plaza (M-29) Santa Ana, CA 92701 With a copy by E-mail to: Craig Foster cfoster@santa-ana.org and Rebecca Andrews Rebecca.andrews@bbklaw.com TO OC RECYCLING PARTIES: 10. Miscellaneous. OC Recycling Attn: Ryan Bloom 1601 East Edinger Santa Ana, CA 92705 rbloom@ocrecycling.com With a copy to: Watts Law APC Attn: Aaron C. Watts 9900 Research Drive Irvine, CA 92618 awatts@wattslawyers.com admin@wattsalwyers.com 10.1. Confidential Agreement. The Parties agree the terms of this Settlement Agreement will be confidential, subject to the requirements of the California Public Records Act and any other requirements under applicable law. 10.2. Authorization. Each of the Parties warrant, covenant, and agree that the person executing this Agreement is authorized and empowered to enter into and execute this Agreement for and on behalf of the Party they represent, and by their execution hereof, each respective Party they represent, and all persons, partnerships, corporations, joint ventures and any person or thing affiliated therewith, shall be bound by the terms hereof. 10.3. Compromise and Settlement. The Parties acknowledge and agree that the execution of this Agreement is the result of compromise of each Party's claims in the Court of Appeal and is entered in good faith and shall never for any purpose be considered an admission of liability or responsibility concerning any of the claims referred to herein, and no past or present wrongdoing on the part of any of the Parties shall be implied by such payment or execution. 10.4. Acknowledgement. Each Party acknowledges there are supply chain and labor issues associated with the COVID-19 pandemic. The Parties enter into this Agreement with the understanding that the schedule in Paragraph 2 is achievable after full consideration of these issues. Each Party hereby declares that it has received sufficient information, either through its own legal counsel or other sources of its own selection, so as to be able to make an intelligent and informed judgment whether to enter into this Agreement. Each Party further states that it has read this Agreement in its entirety prior to signing this Agreement, and that it has signed this Agreement voluntarily, with competence and capacity to contract and with knowledge of the terms, significance, and legal effect of this Agreement. 10.5. Successors and Assigns. The Parties agree that the terms, conditions and provisions of this Agreement are binding upon, and shall inure to the benefit of, all assigns and successors - in -interest of each of the Parties hereto. 10.6. Cooperation and Communication. The Parties agree to perform any acts and execute and deliver any documents consistent with the terms and conditions of this Agreement which may be needed, desired or required to effectuate the terms, conditions and provisions hereof. OC Recycling Parties agree to cooperate with the City and will, whenever and as often as it is reasonably requested to do so by the City, execute, acknowledge or deliver in a timely manner any information, documents and witnesses as may be reasonably necessary or proper for City to inspect the progress of the Approved WQMP implementation. The City agrees to cooperate with OC Recycling Parties and will, whenever and as often as it is reasonably being requested, review, acknowledge, approve or provide comments to OC Recycling Parties' submissions to it for permits or other approvals necessary to implement the Approved WQMP. 10.7. Waiver of Fees and Costs. The Parties agree to waive any claims they may have between them for reimbursement of any costs, expert fees and attorneys' fees, including those incurred in connection with the Judgment, Appeal, and Cross -Appeal. Each Party agrees to bear its own such costs, expert fees and attorneys' fees, including, but not limited to, the fees incurred in the preparation of this Agreement. 10.8. Jurisdiction and Venue. The Parties agree that this Agreement is made, and is intended to be performed, within the State of California, and that this Agreement shall in all respects be interpreted, enforced and governed under the laws of the State of California. The Parties agree that the Orange County Superior Court shall retain jurisdiction to enforce this Agreement in accordance with the provisions of California Code of Civil Procedure section 664.6. 10.9. Entire Agreement. This Agreement constitutes the entire and only agreement between the Parties with reference to the subject matter hereof and supersedes any prior agreement, oral or written, with respect thereto. The Parties further agree that no representation, warranty, agreement or covenant has been made with regard to this Agreement, except as expressly recited herein and that in entering into this Agreement, no Party is relying upon any representation, warranty, agreement or covenant not expressly set forth in this Agreement. 10.10. Severability. The Parties to this Agreement acknowledge that if any provision of this Agreement is declared invalid, void, or unenforceable, the balance of the provisions shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated. 10.11. Amendment. This Agreement maybe amended only in writing and signed by each of the Parties hereto. 10.12. Counterparts and Electronic Signatures. The Parties agree that this Agreement may be signed in counterpart and facsimile or email generated signatures shall have the same force and effect as original signatures. This Agreement may be transmitted and signed by electronic or digital means by any or all Parties and that such signatures shall have the same force and effect as original signatures in accordance with California Government Code Section 16.5 and California Civil Code Section 1633.7. Signature page follows E N-2022-199 Signature Page to Settlement Agreement and Release of Claims By and Between the OC Recycling Parties and City of Santa Ana OC RECYCLING, INC., a California Corporation By: Gl� CITY OF SANTA ANA, a California public agency By Name:_ Kristine Ridge — Title:_ City Manager — Date: Name: s.n vv�n Title: ✓ ¢Si a �Y Date: 5 Z o -Z-z RYAN BLOOM, an individual By: APPROVED AS TO FORM By: A`P Name: 3tovµ Name: John M. Funk Date: Title: Chief Assistant City Attorney ATTEST: 10 J Y © - CLERK OF THE COUNC CITY OF SANTA ANA EXHIBIT A WIRE INSTRUCTIONS CHASE 10 Wire Instructions: Beneficiary Bank: JPMorgan Chase & Co., N.A. 270 Park Avenue New York, NY 10017 USA Swift Code: CHASUS33 Routing Number: 021000021 (default) or 322271627 (local) ACH: 322271627 Customer Name: City of Santa Ana Account Number: 935309500 (General Account) EXHIBIT B _[Name, state bar number, address, telephone]_ _ Attorney for _ _[name]_ _ [Title of court] [Title of case] _[Naive, state bar number, address, telephone]__ Attorney for _ _[name]_ _ [Title of court] [Title of case] JOINT NOTICE OF SETTLEMENT (CAL RULES OF CT 8.244(a)) To the clerk of the court: The parties, having reached a full and complete settlement of the matter, provide notice of settlement of the appeal filed by appellant, __[name]_. and the cross -appeal filed by cross - appellant and respondent, _ [name] _, _[appeal number]_. In accordance with California Rule of Court 8.244(a)(3), within 45 days after filing this Notice of Settlement, unless the court has ordered a longer time period on a showing of good cause, the appellant and cross -appellant will file a request to dismiss under Rule 8.244(c). EXHIBIT C _[Name, state bar number, address, telephone]__ Attorney for _ _[name]_ _ [Title of court] [Title of case] _[Name, state bar number, address, telephone]_ _ Attorney for _ _[name]_ _ [Title of court] [Title of case] STIPULATION FOR DISMISSAL OF APPEAL (CAL RULES OF CT 8.244(c)); PROPOSED ORDER DISMISSING APPEAL To the clerk of the court: The parties, having reached a full and complete settlement of this matter, stipulate that the appeal filed by appellant, _ _[name]_ _, _ _[appeal number]_ _ be dismissed. The parties further stipulate that each party bear its own costs, and request that the Court issue its remittitur forthwith. Date: _ _[Signature]_ _ _ _[Typed name]_ _ Attorney for _ _[plaintiff/defendant]_ _ and appellant, _ _[name]_ _ Date: _ _ _ _ _ _ _ _[Signature]_ _ __[Typed name]__ Attorney for _ _[plaintiff/defendant]_ _ and respondent, _ _[name]_ _ ORDER DISMISSING APPEAL Upon the stipulation and request of all parties, the appeal in this matter is hereby dismissed without costs to either party under California Rules of Court 8.244(c). The remittitur shall issue forthwith. Date: _ _ _ _ _ _ _ _[Signature]_ _ Judge