Natural Resources Defense Council, Inc. et al v. County of Los Angeles et al

Filing 461

JUDGMENT RETAINING JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT AND DISMISSING ACTION WITH PREJUDICE 460 by Judge Beverly Reid O'Connell IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction for the purpose of r esolving any disputes between the parties with respect to enforcement of any provision of the terms of the parties Settlement Agreement attached hereto as Exhibit A. FURTHER ORDERED, ADJUDGED, AND DECREED that this action is dismissed with prejudice. Except as set forth in the Settlement Agreement, each party shall bear its owncosts and attorneys fees. (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NATURAL RESOURCES DEFENSE ) Case No. CV 08-1467 BRO (PLAx)
)
COUNCIL, INC. and SANTA
) JUDGMENT RETAINING
MONICA BAYKEEPER,
) JURISDICTION TO ENFORCE
) SETTLEMENT AGREEMENT AND
Plaintiffs,
) DISMISSING ACTION WITH
) PREJUDICE
v.
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COUNTY OF LOS ANGELES, et al., )
)
)
Defendants. )
________________________________ )

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WHEREAS Plaintiffs and Defendants County of Los Angeles and Los Angeles
Flood Control District have entered into a Settlement Agreement that is a full and final
settlement of all of Plaintiffs’ claims against all Defendants in this action;
WHEREAS the parties in their Settlement Agreement have stipulated to the
Court retaining jurisdiction to enforce the Settlement Agreement, and to dismissing
this action with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2);
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court
shall retain jurisdiction for the purpose of resolving any disputes between the parties
with respect to enforcement of any provision of the terms of the parties’ Settlement
Agreement attached hereto as Exhibit A;

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this action
is dismissed with prejudice.
Except as set forth in the Settlement Agreement, each party shall bear its own
costs and attorneys’ fees.
IT IS SO ORDERED.
DATED: November 23, 2016

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By:
Honorable Beverly R. O’Connell
United States District Court Judge

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Exhibit A

SETTLEMENT AGREEMENT
This Settlement Agreement is entered into by and between Plaintiffs Natural Resources
Defense Council, Inc. and Los Angeles Waterkeeper (previously known as Santa Monica
Baykeeper), and Defendants County of Los Angeles and Los Angeles County Flood Control
District. Plaintiffs and Defendants are hereafter referred to individually as “Party” and
collectively as “Parties.”
RECITALS
WHEREAS on or about December 13, 2001, the California Regional Water Quality
Control Board, Los Angeles Region, adopted Order No. 01-182, National Pollutant Discharge
Elimination System (NPDES) Permit No. CAS004001, governing the discharge of stormwater
and non-stormwater by Los Angeles County, the Los Angeles County Flood Control District and
84 municipalities in the Los Angeles Basin (Order No. 01-182 was amended on September 14,
2006, August 9, 2007, December 10, 2009, October 19, 2010 and April 14, 2011; Order No. 01182, as amended, will hereafter be referred to as the “2001 Los Angeles County Municipal
Stormwater Permit”);
WHEREAS on May 31, 2007, September 10, 2007, and December 18, 2007, Plaintiffs
served by certified mail notices of intent to sue under the Clean Water Act on the County of Los
Angeles, the members of the County’s Board of Supervisors in their official capacity as
Supervisors, and Donald D. Wolfe, in his official capacity as Director of the Los Angeles County
Department of Public Works, with copies to the United States Attorney General, the United
States Environmental Protection Agency, the State Water Resources Control Board, and the
California Regional Water Quality Control Board, Los Angeles Region, among other recipients,
asserting that the County of Los Angeles had violated and continued to violate the Clean Water
Act, 33 U.S.C. §§ 1311(a) and 1342, by violating the 2001 Los Angeles County Municipal
Stormwater Permit;
WHEREAS on March 3, 2008, Plaintiffs filed a Complaint against Defendants (as well
as Michael Antonovich, Yvonne B. Burke, Don Knabe, Gloria Molina, and Zev Yaroslavsky, in
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their official capacity as Supervisors, and Donald L. Wolfe, in his official capacity as Director of
the Los Angeles County Department of Public Works) in the United States District Court,
Central District of California, entitled Natural Resources Defense Council, et al., v. County of
Los Angeles, et al. Case No. CV-08-01467 BRO (PLAx);
WHEREAS on July 3, 2008, Plaintiffs served by certified mail a notice of intent to sue
under the Clean Water Act on the County of Los Angeles, the members of the County’s Board of
Supervisors in their official capacity as Supervisors, Donald D. Wolfe, in his official capacity as
Director of the Los Angeles County Department of Public Works District, and the Los Angeles
County Flood Control District, with copies to the United States Attorney General, the United
States Environmental Protection Agency, the State Water Resources Control Board, and the
California Regional Water Quality Control Board, Los Angeles Region, among other recipients,
asserting that the Defendants had violated and continued to violate the Clean Water Act, 33
U.S.C. §§ 1311(a) and 1342, by violating the 2001 Los Angeles County Municipal Stormwater
Permit;
WHEREAS on September 19, 2008, Plaintiffs filed a First Amended Complaint against
Defendants (as well as Michael Antonovich, Yvonne B. Burke, Don Knabe, Gloria Molina, and
Zev Yaroslavsky, in their official capacity as Supervisors, and Dean D. Efstathiou, in his official
capacity as Director of the Los Angeles County Department of Public Works);
WHEREAS Plaintiffs’ First Amended Complaint alleges that the Defendants violated
and continued to violate 33 U.S.C. §§ 1311(a) and 1342 by failing to comply with certain
provisions of the 2001 Los Angeles County Municipal Stormwater Permit, including but not
limited to a prohibition against non-stormwater discharges, a prohibition against stormwater
discharges that cause or contribute to the violation of water quality standards in Los Angeles
County watersheds, and a prohibition against the discharge of “waste” as defined by the
California Water Code into areas designated by the State of California as “Areas of Special
Biological Significance”;
WHEREAS Plaintiffs’ First Amended Complaint seeks civil penalties and injunctive
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relief for the alleged Clean Water Act permit violations, among other types of relief;
WHEREAS on September 29, 2008 and October 27, 2008, Defendants filed Answers to
Plaintiffs’ First Amended Complaint, denying the allegations in Plaintiffs’ First Amended
Complaint; and
WHEREAS the Parties now agree that it is in the Parties’ mutual interest to enter into a
Settlement Agreement resolving this litigation;
BASED ON THE FOREGOING RECITALS AND THE TERMS AND
CONDITIONS CONTAINED HEREIN, the Parties agree as follows:
I.
A.

DEFINITIONS

Unless otherwise expressly defined in this agreement, terms used in this

Settlement Agreement that are defined in the Clean Water Act, or in regulations promulgated
under the Clean Water Act, have the meaning assigned to them in the statute or regulations.
B.

Whenever terms listed below are used in this Settlement Agreement, the

following definitions apply:
1.

“Community-based organization” means a non-profit environmental,

educational, social justice, or job-creation organization based in Los Angeles County.
2.

“Complaint” means the complaint filed in this Litigation on March 3,

3.

“Defendants” means the County of Los Angeles and the Los Angeles

2008.

County Flood Control District. For purposes of this Settlement Agreement, “Defendants” does
not include the individuals named in their official capacity as defendants in the Litigation.
4.

“Effective Date” means the date on which the District Court enters the

Judgment Retaining Jurisdiction to Enforce Settlement Agreement and Dismissing Action with
Prejudice.
5.

“EPA” means the United States Environmental Protection Agency.

6.

“Execution Date” means the date by which all Parties have signed the

Settlement Agreement.
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7.

“First Amended Complaint” means the First Amended Complaint filed in

this Litigation on September 19, 2008.
8.

“Litigation” means Natural Resources Defense Council, et al. v. County of

Los Angeles, et al., No. CV-08-01467 BRO (PLAx) (C.D. Cal.), and all appeals arising out of
that matter.
9.

“Parties” means the entities entering into this Settlement Agreement.

10.

“Plaintiffs” means the Natural Resources Defense Council, Inc. and Los

Angeles Waterkeeper, formerly known as Santa Monica Baykeeper.
11.

“Residential stormwater retrofit projects” or “residential stormwater

retrofits” means small-scale distributed-infrastructure projects intended to reduce stormwater
runoff, improve water quality, and/or promote water infiltration and reuse. Residential
stormwater retrofits include, for example, but are not necessarily limited to:
a.

Downspout disconnects;

b.

Swales;

c.

Infiltration trenches;

d.

Rainwater harvest and reuse (e.g., rain barrels or cistern
installation);

e.
f.

Reduction of impervious surfaces;

g.

Flow-through planters;

h.

Porous pavement;

i.
12.

Rain gardens;

Green roofs.

“Settlement Agreement” means this Settlement Agreement and any

attachments or exhibits expressly incorporated by reference into this Settlement Agreement.
13.

“Supplemental Environmental Projects” means the environmentally

beneficial projects identified in sections II.A.3 and II.A.4 of this Settlement Agreement that are
to be implemented or funded by Defendants.
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14.

“Technically infeasible” means cannot be accomplished because of public

safety considerations, unacceptable environmental impacts, local ordinances or regulations,
physical inability based on reasonable engineering judgment, or an inability to obtain any
necessary permits. Cost and expense are not factors to be considered when determining technical
infeasibility.
15.

“2001 Los Angeles County Municipal Stormwater Permit” means

California Regional Water Quality Control Board, Los Angeles Region, Order No. 01-182, as
amended.
16.

“103rd Street Project” means the Supplemental Environmental Project

described in section II.A.3 below.
II.
A.

TERMS

Supplemental Environmental Projects
1.

Defendants agree to construct or fund the Supplemental Environmental

Projects as described and set forth in sections II.A.3 and II.A.4 below.
2.

With regard to the Supplemental Environmental Projects, Defendants

certify the truth and accuracy of each of the following:
a.

As of the Execution Date of this Settlement Agreement,

Defendants are not required to perform or develop the Supplemental Environmental Projects by
any federal, state, or local law or regulation, nor are Defendants required to perform the
Supplemental Environmental Projects by agreement, grant, or as injunctive relief awarded in any
other action in any forum;
b.

The Supplemental Environmental Projects will not be used to

satisfy Defendants’ existing statutory obligations or municipal stormwater permit requirements;
c.

The Supplemental Environmental Projects are not projects that

Defendants intended to construct, perform, or implement other than in settlement of this
Litigation;
d.

Defendants have not received, and are not negotiating to receive,
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credit for the Supplemental Environmental Projects in any other enforcement action;
e.

Defendants will not receive any reimbursement for any portion of

the cost of the Supplemental Environmental Projects from any other person.
3.

103rd Street Project
a.

Defendants, or either of them, will design and build or contract for

the design and building of a “green streets” project to improve and enhance 103rd Street in Los
Angeles, California, between South Central Avenue and Success Avenue, with the central
objectives of curbing stormwater runoff, minimizing stormwater pollution, increasing green
space, and improving pedestrian access.
b.

Defendants anticipate, based on a reasonable analysis, that it will

cost $2,659,000 to complete the 103rd Street Project. If the 103rd Street Project costs more than
$2,659,000, Defendants agree to spend the necessary additional money to complete the Project.
Defendants will not be required to allocate any additional money to another project if the 103rd
Street Project costs less than $2,659,000.
c.

A map indicating the intended location of the 103rd Street Project

is attached to this Settlement Agreement as Exhibit 1.
d.

The 103rd Street Project will include the following elements,

subject to subsections e through h below:
(1)

Rehabilitation along 103rd Street of the existing roadway,

sidewalk and driveway repairs, enhanced crosswalks, and street light
improvements;
(2)

A pervious concrete gutter along the south side of 103rd

(3)

Placement of solar trash cans along the south side of 103rd

Street;

Street, between South Central Avenue and Success Avenue;
(4)

Construction of a bioswale adjacent to the parking lot on

the south side of Ted Watkins Memorial Park, replacement of existing ivy in the
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parkway along the parking lot with drought-tolerant native vegetation, and the
addition of curb cuts to allow stormwater to flow into the bioswale;
(5)

Placement of an additional bike rack in the Ted Watkins

Memorial Park parking lot;
(6)

Removal of existing asphalt for diagonal parking on 103rd

Street, construction of porous concrete in the diagonal parking area, and tree
plantings along the diagonal parking area;
(7)

Installation of parkway low impact development upgrades

along the south side of 103rd Street, which will include a combination of
permeable pavement, curb cuts, swales, soil amendments, and drought-tolerant
native vegetation;
(8)

Educational signage on the site that explains the purpose

and environmental benefits of the 103rd Street project.
e.

During the design or construction of the 103rd Street Project,

should Defendants, or either of them, determine that it is technically infeasible (as defined
above) to include one of the elements set forth in subparagraph d above, the Parties will meet and
confer in good faith in an attempt to resolve the issue. If the Parties cannot resolve the issue, any
Party may invoke the dispute resolution process set forth in section II.E below for the purpose of
determining whether the Project should be modified.
f.

Either or both Defendants will solicit public input on the design of

the 103rd Street Project within 180 days of the Effective Date of the Settlement Agreement by
holding a public workshop at a location within one mile of Ted Watkins Memorial Park to
present tentative project design details to members of the local community and request feedback.
The Parties agree to meet and confer within 30 days of the public workshop to discuss any
appropriate modifications to the 103rd Street Project in response to public input. Defendants will
hold in reserve an additional $141,000 to cover the cost of any modifications agreed to pursuant
to this paragraph. Any portion of the $141,000 not added to the budget for the 103rd Street
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Project for any such modification will be transferred to TreePeople within one year of the
Effective Date of the Settlement Agreement for residential stormwater retrofits described in
section II.A.4 below.
g.

The Parties may also mutually agree to modify the 103rd Street

h.

Any modification of the 103rd Street Project under subsections e

Project.

through g above, unless ordered by the District Court pursuant to dispute resolution, must be
agreed to by the Parties and reflected in a written amendment to this Settlement Agreement. The
written amendment need not be filed with the District Court, but can be introduced without
objection in any proceeding before the District Court.
i.

Defendants, or either of them, will commence the 103rd Street

Project within 120 days of the Effective Date of the Settlement Agreement. Defendants, or either
of them, will complete construction of the 103rd Street Project within 4 years of the Effective
Date.
j.

Defendants, or either of them, will provide Plaintiffs with quarterly

written updates on the status of the 103rd Street Project, beginning 180 days from the Effective
Date of this Settlement Agreement and continuing until completion of the project.
k.

Within 120 days of completion of the 103rd Street Project,

Defendants, or either of them, will provide Plaintiffs with a final project completion report. The
final report will certify that the project was completed consistent with the requirements of this
Settlement Agreement and will quantify the benefits associated with the project, including an
explanation of how the benefits were measured or estimated.
4.

Residential Stormwater Retrofits
a.

Defendants, or either of them, will pay a total of $1,200,000 to

fund residential stormwater retrofit projects located in the unincorporated area of the County of
Los Angeles and within the Los Angeles County Flood Control District.
b.

Within 5 days of the Execution Date of this Settlement Agreement,
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Plaintiffs will send a copy of this Settlement Agreement to TreePeople. Within 14 days of
TreePeople’s receipt of this Settlement Agreement, Defendants, or either of them, will seek to
obtain from TreePeople a letter, addressed to the United States Department of Justice, EPA, and
the Parties, confirming TreePeople’s commitment and intent to spend the designated funds
consistent with all requirements of this Settlement Agreement, including the priorities for
residential stormwater retrofits listed in subsection d, below.
c.

Within 30 days of the Execution Date of this Settlement

Agreement, Defendants, or either of them, will seek to enter into a contract with TreePeople for
the purpose of managing a program for residential retrofits consistent with the terms of the
Settlement Agreement. Plaintiffs will have the right to review the proposed contract, or any
proposed modification of the contract, and object to any term contained therein as inconsistent
with the terms of the Settlement Agreement. If the Parties cannot resolve any objection by
Plaintiffs to any term of the proposed contract, any Party may invoke the dispute resolution
process set forth in section II.E below.
d.

Within 60 days of the Effective Date of this Settlement Agreement

or 60 days after the Defendants, or either of them, enter into a contract with TreePeople,
whichever is later, Defendants, or either of them, will transfer to TreePeople $1,200,000 for the
funding of residential stormwater retrofit projects, as outlined in the contract. The contract with
TreePeople will contain the following conditions:
(1)

TreePeople will expend or commit for expenditure the

funds transferred to it within 3 years of the date the funds are transferred to it.
(2)

Only projects intended for single-family residences or

residences of 4 units or less can qualify as residential stormwater retrofit projects.
TreePeople will implement, by itself or through partnerships with communitybased organizations as described below in subparagraph d(3), residential
stormwater retrofit projects at 25 to 40 such residences, unless infeasible. The
residences will be in more than one neighborhood.
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(3)

Of the $1,200,000 in funding, TreePeople will grant at least

$400,000 to community-based organizations in Los Angeles County to participate
in collaborative projects in partnership with TreePeople to implement the
residential stormwater retrofits required by the Settlement Agreement.
(4)

TreePeople will expend or commit for expenditure the

funds transferred to it on projects that meet one or more of the following criteria:
(a)

Projects that capture or infiltrate stormwater for

beneficial reuse;
(b)

Projects that mitigate the impacts of metals and

bacteria in stormwater runoff;
(c)

Projects in disadvantaged communities, defined to

mean communities with an annual median household income below
$48,875, or 80% of the statewide median household income;
(d)

Projects in census tracts with an overall score of

81% or higher using the California Communities Environmental Health
Screening Tool, developed by the California Environmental Protection
Agency’s Office of Environmental Health Hazard Assessment to help
direct investments to California communities that are disproportionately
burdened by multiple sources of pollution;
(e)

Projects that demonstrate a commitment to engage

the local community in project design and implementation, and a
commitment to publicly promote the project upon completion.
(5)

TreePeople will endeavor to coordinate with workforce

development organizations to train local residents on installation and maintenance
of the residential stormwater retrofits.
(6)

TreePeople will seek opportunities to leverage the

residential stormwater retrofit funds allocated to it under this Settlement
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Agreement with outside resources or additional sources of funding to achieve
greater community impacts.
(7)

TreePeople will provide an annual report to the United

States Department of Justice, EPA, and the Parties on the status of the residential
stormwater retrofit projects, beginning one year after receipt of the funds
transferred to it.
(8)

Within 30 days of expenditure or commitment of all funds,

TreePeople will provide a final letter or report to the United States Department of
Justice, EPA, and the Parties describing its expenditure or commitment of the
funds transferred to it and explaining how TreePeople has satisfied the
requirements of this Settlement Agreement. The letter will address the following
metrics:
(a)

Estimated total volume of stormwater captured or

(b)

Total area of impervious surface removed;

(c)

Number of residences at which a retrofit was

(d)

Extent and effectiveness of community engagement

diverted;

installed;

efforts, if applicable.
B.

Payment of Litigation Costs
1.

Defendants will pay Plaintiffs the sum of $3,300,000, which constitutes

settlement of all Plaintiffs’ claims for attorneys’ fees and other costs incurred by Plaintiffs in this
Litigation, from its commencement to the present. The payment will be made within 30 days of
the Effective Date of this Settlement Agreement. The payment will be made in the form of a
check or warrant payable to Natural Resources Defense Council and sent to the following
address: Natural Resources Defense Council, 40 West 20th Street, New York, NY 10011, Attn:
Hiawatha Barno.
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2.

Plaintiffs do not waive any claims to recovery for costs or fees incurred in

this Litigation after the Effective Date of this Settlement Agreement, in the event Plaintiffs file a
successful motion to enforce this agreement. Defendants reserve all defenses to any such claim
for costs or fees.
C.

Federal Agency Review
1.

Within 2 days after the Execution Date of this Settlement Agreement,

Plaintiffs will serve a copy of the executed Settlement Agreement on the EPA Administrator, the
Regional Administrator of EPA Region 9, and the United States Attorney General (collectively,
the Federal Agencies), consistent with 40 C.F.R. § 135.5.
2.

Within 5 days of service of this Settlement Agreement on the Federal

Agencies, the Parties will jointly file a Notice of Tentative Settlement and Commencement of
45-Day Review Period with the District Court.
3.

If the Federal Agencies object to any provision of this Settlement

Agreement, the Parties will meet and confer within 14 days of receiving those objections to
attempt to resolve the issue or issues raised by the Federal Agencies.
D.

Dismissal of Litigation with Prejudice
1.

Dismissal of District Court Proceedings. Forty-five days after the

Federal Agencies receive the Settlement Agreement or, if sooner, upon the Parties’ receipt of
notice that the Federal Agencies have no objections to the terms of the Settlement Agreement,
the Parties will promptly file a Stipulation in the form attached hereto as Exhibit 2 requesting the
Court to enter a judgment first retaining jurisdiction to enforce the Settlement Agreement and
then dismissing with prejudice pursuant to Fed. R. Civ. P. 41(a)(2). A copy of the Settlement
Agreement will be attached to the proposed Judgment.
2.

Dismissal of Appeal. Within 3 days of the Effective Date of this

Settlement Agreement, Plaintiffs will file a motion pursuant to Fed. R. App. P. 42 to dismiss the
pending appeal in Natural Resources Defense Council v. County of Los Angeles, Case No. 1555562 (9th Cir.).
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E.

Dispute Resolution and Force Majeure
1.

Informal Dispute Resolution. The Parties will attempt to resolve disputes

informally. In the event that a dispute arises between the Parties, any Party may invoke the
dispute resolution provisions of this Settlement Agreement to resolve such dispute.
2.

Notice. Prior to making any motion to enforce the terms of this Settlement

Agreement, a Party to this Settlement Agreement will notify all other Parties in writing of the
matter in dispute. The Parties will then meet and confer within 21 calendar days of the date of
the notice in a good faith attempt to resolve the dispute without soliciting the District Court’s
involvement.
3.

Formal Dispute Resolution. If the Parties cannot resolve any dispute by

the end of meet and confer negotiations, the Party or Parties invoking the dispute resolution
provision of this section will provide written notice to the other Parties if it intends to file a
motion to enforce the Settlement Agreement in District Court. The moving Party or Parties will
provide such notice at least 7 calendar days in advance of making any motion. The District Court
will resolve the dispute.
4.

Exclusive Remedy. The Parties acknowledge that this Settlement

Agreement provides for dispute resolution, which is the sole and exclusive remedy, and the
Parties may not otherwise petition the Court for relief for violations of the Settlement Agreement
or bring a new action for breach of this Settlement Agreement.
5.

Deadlines. The Parties agree that, to the extent any task or deadline

hereunder is affected by resort to dispute resolution, the deadline for such task will be extended
for an appropriate period of time. The Parties will discuss the need for such an extension and
attempt to reach agreement regarding the length of the extension. If a dispute regarding such
extension develops, either Party may invoke the dispute resolution process set forth in this
Settlement Agreement.
6.

Force Majeure and Impossibility. Defendants’ obligation to comply

with one or more of the provisions of this Settlement Agreement will be deferred to the extent
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and for the duration that the delay in compliance is caused by force majeure or impossibility.
Force majeure includes any war, fire, earthquake, flood, or other natural disaster, or any restraint
by court order or public authority that could not have been reasonably foreseen and prevented by
Defendants’ exercise of due diligence. Impossibility means an event or circumstances beyond
Defendants’ reasonable control that precludes timely compliance with the Settlement Agreement
and that could not have been reasonably foreseen and prevented by Defendants’ exercise of due
diligence. If Defendants seek to rely upon this paragraph to delay compliance with any provision
of this Settlement Agreement, Defendants will have the burden of establishing that they could
not reasonably have avoided, and despite the exercise of due diligence have been unable to
overcome, the force majeure or impossibility.
7.

Delay in Defendants’ compliance with a specific obligation under this

Settlement Agreement due to force majeure or impossibility will not excuse or delay compliance
with any other obligations required under this Settlement Agreement that are not affected by the
force majeure or impossibility.
8.

Any delays caused by Defendants’ failure to make diligent efforts to

comply with the terms in this Settlement Agreement, or normal inclement weather, will not be
considered to be circumstances beyond Defendants’ control.
9.

If Defendants claim force majeure or impossibility, they will notify

Plaintiffs in writing within 21 days of the date that Defendants first knew, or by the exercise of
due diligence should have known, of the event or circumstance that caused or would cause a
delay in compliance with this Settlement Agreement. The notice will describe the reason for the
anticipated nonperformance and specifically refer to this section of the Settlement Agreement.
The notice will describe the anticipated length of time the delay is expected to persist, the cause
or causes of the delay, the measures taken or to be taken by Defendants to prevent or minimize
the delay, the schedule by which those measures will be implemented, and the anticipated date of
compliance.
10.

Plaintiffs will notify Defendants in writing of Plaintiffs’ position regarding
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any claim of delay or impediment to performance served under this section. Plaintiffs will
provide that response within 14 days of receipt of any written notice served under this section.
11.

If Plaintiffs agree that any delay or impediment to performance has been

or will be caused by force majeure or impossibility, the Parties will agree in writing to a
reasonable modification of all requirements affected by the force majeure or impossibility. The
written agreement need not be filed with the District Court, but will be an amendment to this
Settlement Agreement and can be introduced without objection in any proceeding before the
District Court.
12.

If Plaintiffs disagree with any notice served by Defendants under this

section or the explanation of force majeure or impossibility contained therein, or if the Parties
cannot agree on the terms of new performance requirements, any Party may invoke the dispute
resolution procedures of this Settlement Agreement.
F.

Mutual Release of Liability
1.

Mutual Release. In consideration of the undertakings set forth in this

Settlement Agreement, and except for claims for any Party’s failure to comply with this
Settlement Agreement, upon the Effective Date of this Settlement Agreement, the Parties hereby
fully release each other and their respective successors, boards, assignees, officers, agents, and
employees from any and all claims that are alleged or could have been alleged in Plaintiffs’
Complaint or First Amended Complaint, up to and including the Effective Date of this
Settlement Agreement.
2.

No Admission of Liability. Nothing in this Settlement Agreement

constitutes or may be construed as an admission or evidence of any fault, wrongdoing or liability
whatsoever on the part of any Party, and no such inference may be drawn therefrom.
3.

Waiver of California Civil Code Section 1542. Each of the Parties

acknowledges and warrants that its signing representatives have read and understand the
provisions of California Civil Code section 1542 and each of the Parties expressly, voluntarily,
and knowingly waives any and all rights it may have under Civil Code section 1542 with respect
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to the release set forth in paragraph F.1 above. Section 1542 provides as follows:
“A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.”
G.

Miscellaneous Provisions
1.

Retention of Jurisdiction. The District Court has jurisdiction over this

action. The Parties’ dismissal of this action is contingent on the District Court first retaining
jurisdiction over this matter for purposes of modifying or enforcing the terms of this Settlement
Agreement if necessary. If the District Court declines to retain jurisdiction, this Settlement
Agreement is not effective and any stipulation of dismissal is null and void.
2.

Choice of Law. The laws of the United States and the State of California

govern this Settlement Agreement.
3.

Severability. If any provision, paragraph, section, or sentence of this

Settlement Agreement is held by a court to be unenforceable, that unenforceable portion will be
severed and the validity of the remaining provisions will not be affected.
4.

Notice. All notices or reports required by this Settlement Agreement, and

all other correspondence between the Parties pertaining to this Settlement Agreement, will be
sent to the Parties’ representatives as follows:
For Plaintiffs:
Aaron Colangelo
Natural Resources Defense Council
1152 15th Street NW, Suite 300
Washington, DC 20005
[e-mail]

Steve Fleischli
Natural Resources Defense Council
1314 Second Street
Santa Monica, CA 90401
[e-mail]

Daniel Cooper
Lawyers for Clean Water
1004-A O’Reilly Avenue
San Francisco, CA 94129
[e-mail]

Bruce Reznik
Los Angeles Waterkeeper
120 Broadway, Suite 105
Santa Monica, CA 90401
[e-mail]
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For Defendants:
Assistant Deputy Director
Watershed Management Division
Los Angeles County Dept. of Public Works
900 South Fremont Avenue
Alhambra, CA 91803

Judith Fries, Esq.
Principal Deputy County Counsel
500 W. Temple Street, Rm. 653
Los Angeles, CA 90012
[e-mail]

Howard Gest
Burhenn & Gest LLP
624 South Grand Ave., Suite 2200
Los Angeles, CA 90017
[e-mail]
Any Party may designate a new person or persons to receive notice. All written communications
between the Parties required by this Settlement Agreement will be sent by email and first-class
mail. Any change of address will be communicated in the same manner. Notice is deemed
effective upon receipt if notice is provided personally, one day after sending if sent by express
delivery service, or five days after if sent by first-class mail. The Parties agree to copy each other
on any correspondence with the United States Department of Justice, EPA, or representatives of
TreePeople regarding this Settlement Agreement or the Supplemental Environmental Projects it
requires.
5.

Full Resolution of Dispute. The Parties enter into this Settlement

Agreement for the purpose of resolving all claims and disputes that arise out of or relate to the
facts and allegations in Plaintiffs’ Complaint and First Amended Complaint.
6.

Effect of Settlement Agreement. Nothing in this Settlement Agreement

will be construed to affect or limit Defendants’ obligations to comply with all federal, state, and
local laws and regulations governing any activity required by this Settlement Agreement.
7.

No Transfer or Assignment. Each of the Parties warrants and represents

that it has not assigned or transferred or purported to assign or transfer, voluntarily, involuntarily,
or by operation of law, any claim, cause of action, or matter released pursuant to this Settlement
Agreement, or any part or portion thereof, to any person or entity not a party to this Agreement.
17

8.

Jointly Drafted. The Parties have jointly drafted this Settlement
Agreement, end the Agreement mey not be interpreted against or in favor of eny of
the Partica
that participated in drafting the Agreement es a result oftheir participation.
9
.

Counterparts. This Settlement Agreement may he executed in any
number ofcounterparts, all ofwhich together constitute one original document.
!
0.

Modillcatton.'this Settlement Agreement and its provisions may not be

changed, waived,discharged, or terminated unless by a written amendment signed by

the Parties.

Any written amendment need not be 61ed with the District Court, but can be introduc

ed without

objection in any pzoeeeding before the District Court.
1 1.

Final Settiemant. This SetUemen[ Agreement constitutes a full end final

s~tlement ofthis Litig~ion.
12.

Complete Agreement. This is an integrated agreement:' This Settlement

Agreement is intended to be a full and complete statement ofthe terms offfie agreemen

t between

the Parties and expressly supersedes any and all prior oral or written agreements,
covenants,
reproaentations, end weaanties (express or implied) concerning the subject matter of
this
Settlement Agreement.
13.

Authority. The undersigned reprcacntatives for PlaintiR's end Defendants

each certify that hdshe is fully authorized by the Party or Parties whom hdshe represent
s to
enter into the terns and conditions ofthis Settlement Agreement.
14.

Binding Agreement. The provisions of this Settlement Agreement apply

to, bind,end inure to the benefit ofthe Pazties, including any successors or assignees.

7'he Parties

agree not to contest the validity of this Settlement Agroement in any subsequent proceeding
to
implement or enforce its terms.
l5.

Ef(ective Date. This Settlement Agreement is effective as ofthe EtYective

Date defined herein.
Ihted:
~

~~~

Natural Resources Defense Council, Inc.

18

Name: Steve Fleisah~
Title: w9~47te~— ('~~y~A~n {~s~c-'~,~-

Dated: ~/~~ ~ -~

Los Angeles Waterkeeper

By:
Name: Bruce Re'tnik
Title: ~.~G~U~'f~~
Dated:

~ ~ Z~" ~ ~

~~~f7J/'

County ofLos Angeles

Name: C3ail Ferber
Title: Duector, bepardnent ofPublic Works

Dated:

9~ 2-7' ~ ~

Los Angeles County Elood Control District

Name: Gail Farber
Title: ChiefEagIneer
APE'ROVBD AS TO FORM:

~,.0

-~

Aaron Coleagnlo
Catherine Mazlantes Rehm
Natural Resources Defense Council,[nc.
1 152 15~' Street NW,Suite 300
Washington, DC 20005
Attumeysf 'IaintifFNaturel Resources Defense Council,inc.
. '4' ,
." ~
Daniel Cooper
Lawyers for Clean Water
1004A O'Reilly Avenue
19

San Frencisco. CA 94129
Attomeya for Plaintiff Los Mgeles Waterkeeper
f 3ente Monica Baykeaper
/k/a
MARY C. WICKHAM
COunty CoWscl

j Deputy
)
Attomeya for Defendants County ofI.os Angeles
and Los Angeles County Ptood Control District

20

EXHIBIT 1

0

A ng

eles

Rive

0.05

0.1
Miles

r

110

§
¦
¨
§ §
¦ ¦
¨ ¨
£
¤
§
¦
¨
105

Success Av

County of Los Angeles
Century Blvd

Pacific
Ocean

405

Sa
n

Ga

br

iel

Los

0.025

r

±

Ri
ve

Exhibit 1: 103rd Street between
South Central Avenue and Success Avenue

710

91

S Central Av

City of Los Angeles

E 103rd St

Legend
103rd Street Project

103rd Street Project Location
Unincorporated County Area

Source: Esri, DigitalGlobe, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AEX,
Getmapping, Aerogrid, IGN, IGP, swisstopo, and the GIS User Community

EXHIBIT 2

1
2
3
4
5
6
7
8
9
10
11
12

MARY C. WICKHAM, County Counsel
ROBERT C. CARTWRIGHT, Assistant County Counsel
JUDITH A. FRIES, Principal Deputy (SBN 070897)
[e-mail]
500 W. Temple St., Rm. 653
Los Angeles, California 90012
Telephone: [phone]
Facsimile: [phone]
BURHENN & GEST LLP
HOWARD GEST (SBN 076514)
[e-mail]
DAVID W. BURHENN (SBN 105482)
[e-mail]
624 South Grand Avenue, Suite 2200
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

13
14
15
16
17
18
19
20

NATURAL RESOURCES DEFENSE ) Case No. CV 08-1467 BRO (PLAx)
)
COUNCIL, INC. and SANTA
) STIPULATION TO RETAIN
MONICA BAYKEEPER,
) JURISDICTION TO ENFORCE
) SETTLEMENT AGREEMENT AND
Plaintiffs,
) DISMISS ACTION WITH
) PREJUDICE
v.
)
COUNTY OF LOS ANGELES, et al., ) [Federal Rule Civ. Pro. 41(a)(2)]
)
)
Defendants. )
________________________________ )

21

WHEREAS Plaintiffs and Defendants County of Los Angeles and Los Angeles

22

Flood Control District have entered into a Settlement Agreement that achieves a full

23

and final settlement of all of Plaintiffs’ claims against all Defendants in this action; and

24

WHEREAS the Parties in their Settlement Agreement have agreed to stipulate to

25

entry of a judgment in the form attached hereto as Exhibit A, with the Court retaining

26
27
28

jurisdiction to resolve any disputes between the parties with respect to enforcement of
1
________________________________________________________________________
STIPULATION TO RETAIN JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT
AND DISMISS ACTION WITH PREJUDICE

1

any provision of the terms of the settlement agreement, and dismissing this action with

2

prejudice;

3

IT IS HEREBY STIPULATED, by and between the Parties, through their

4

undersigned counsel, that the Court can enter judgment in this action in the form

5

attached hereto as Exhibit A.

6

Dated: _______________

7

AARON COLANGELO
CATHERINE MARLANTES RAHM
JACLYN PRANGE

8
9
10

By: _________________________
Aaron Colangelo
Attorneys for Plaintiff Natural Resources Defense
Council, Inc.

11
12
13
14

Dated: _______________

LAWYERS FOR CLEAN WATER, INC.
DANIEL COOPER

15
16

By: _________________________
Daniel Cooper
Attorneys for Plaintiff Los Angeles Waterkeeper

17
18
19
20

Dated: _______________

MARY C. WICKHAM, County Counsel
ROBERT C. CARTWRIGHT, Asst. County Counsel
JUDITH A. FRIES, Principal Deputy

21
22
23

BURHENN & GEST LLP
HOWARD GEST
DAVID W. BURHENN

24
25
26
27
28

By: _____________________
Howard Gest
Attorneys for Defendants
2
________________________________________________________________________
STIPULATION TO RETAIN JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT
AND DISMISS ACTION WITH PREJUDICE

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

NATURAL RESOURCES DEFENSE ) Case No. CV 08-1467 BRO (PLAx)
)
COUNCIL, INC. and SANTA
) JUDGMENT RETAINING
MONICA BAYKEEPER,
) JURISDICTION TO ENFORCE
) SETTLEMENT AGREEMENT AND
Plaintiffs,
) DISMISSING ACTION WITH
) PREJUDICE
v.
)
COUNTY OF LOS ANGELES, et al., )
)
)
Defendants. )
________________________________ )

17
18
19
20
21
22

WHEREAS Plaintiffs and Defendants County of Los Angeles and Los Angeles
Flood Control District have entered into a Settlement Agreement that is a full and final
settlement of all of Plaintiffs’ claims against all Defendants in this action;
WHEREAS the parties in their Settlement Agreement have stipulated to the
Court retaining jurisdiction to enforce the Settlement Agreement, and to dismissing this
action with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2);

23

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court

24

shall retain jurisdiction for the purpose of resolving any disputes between the parties

25

with respect to enforcement of any provision of the terms of the parties’ Settlement

26

Agreement attached hereto as Exhibit A;

27
28

1
________________________________________________________________________
JUDGMENT RETAINING JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT AND
DISMISSING ACTION WITH PREJUDICE

1
2
3

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this action is
dismissed with prejudice.
Except as set forth in the Settlement Agreement, each party shall bear its own

4

costs and attorneys’ fees.

5

Dated: ________________

6
7

______________________________
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2
________________________________________________________________________
JUDGMENT RETAINING JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT AND
DISMISSING ACTION WITH PREJUDICE