Global Community Monitor v. Alameda County Industries Inc

Filing 17

STIPULATION AND ORDER OF DISMISSAL re 16 Proposed Order filed by Global Community Monitor. Signed by Judge Edward M. Chen on 11/30/11. (bpf, COURT STAFF) (Filed on 11/30/2011)

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MICHAEL R. LOZEAU (State Bar No. 142893)
DOUGLAS J. CHERMAK (State Bar No. 233382)
Lozeau Drury LLP
410 12th Street, Suite 250
Oakland, CA 94607
Tel: [phone]
Fax: [phone] (fax)
E-mail: [e-mail]
[e-mail]
Attorneys for Plaintiff
GLOBAL COMMUNITY MONITOR

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GLOBAL COMMUNITY MONITOR, a
non-profit corporation,
Plaintiff,

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vs.

Case No. 11-00976
STIPULATION TO DISMISS
PLAINTIFF’S CLAIMS; [PROPOSED]
ORDER GRANTING DISMISSAL
[FRCP 41(a)(2)]

ALAMEDA COUNTY INDUSTRIES, INC.,
a corporation.
Defendant.

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WHEREAS, on December 17, 2010, Plaintiff Global Community Monitor (“GCM”)

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provided Defendant Alameda County Industries, Inc. (“ACI”) with a Notice of Violations and Intent

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to File Suit (“Notice”) under Clean Water Act § 505, 33 U.S.C. § 1365.

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WHEREAS, on March 2, 2011, GCM filed its Complaint against ACI in this Court, Global

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Community Monitor v. Alameda County Industries, Inc, Case No. 11-00976. Said Complaint

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incorporates by reference all of the allegations contained in GCM’s Notice.

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WHEREAS, GCM and ACI, through their authorized representatives and without either

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adjudication of GCM’s claims or admission by ACI of any alleged violation or other wrongdoing,

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have chosen to resolve in full by way of settlement the allegations of GCM as set forth in the Notice

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and Complaint, thereby avoiding the costs and uncertainties of further litigation. A copy of the

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Settlement Agreement and Mutual Release of Claims (“Settlement Agreement”), without the
Stipulation To Dismiss Plaintiff’s Claims;
[Proposed] Order Granting Dismissal

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Case No. 11-00976

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attached exhibits, entered into by and between GCM and ACI is attached hereto as Exhibit 1 and

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incorporated by reference.

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WHEREAS, the parties submitted the Settlement Agreement via certified mail, return receipt

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requested, to the U.S. EPA and the U.S. Department of Justice and the 45-day review period set

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forth at 40 C.F.R. § 135.5 has completed and the federal agencies have submitted correspondence to

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the Court indicating that they have no objection to the terms of the Settlement Agreement.

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NOW THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between the

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parties that GCM’s claims, as set forth in the Notice and Complaint, be dismissed. The parties

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respectfully request an order from this Court dismissing such claims. In accordance with paragraph

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2 of the Settlement Agreement, the parties also request that this Court maintain jurisdiction over the

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parties through December 13, 2014, for the sole purpose of resolving any disputes between the

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parties with respect to enforcement of any provision of the Settlement Agreement.

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Dated: November 28, 2011

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Respectfully submitted,
LOZEAU DRURY LLP

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By:

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_/s/ Douglas J. Chermak_________________
Douglas J. Chermak
Attorney for Plaintiff Global Community Monitor

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BRADY & VINDING

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By:

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_Michael V. Brady (as authorized on 11/28/11) __
Michael V. Brady
Attorney for Defendant
Alameda County Industries, Inc.

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Stipulation To Dismiss Plaintiff’s Claims;
[Proposed] Order Granting Dismissal

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Case No. 11-00976

[PROPOSED] ORDER

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Good cause appearing, and the parties having stipulated and agreed,
IT IS HEREBY ORDERED that Plaintiff Global Community Monitor’s claims against

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Defendant Alameda County Industries, Inc., as set forth in the Notice and Complaint filed in Case

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No. 11-00976, are hereby dismissed.

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IT IS FURTHER ORDERED that the Court shall retain jurisdiction over the parties through

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December 13, 2014 for the sole purpose of enforcing compliance by the parties of the terms of the

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Settlement Agreement, attached to the parties’ Stipulation to Dismiss as Exhibit 1.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

IT IS

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____________________________________
Judge Edward M. Chen
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United StatesO ORDJudge
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11/30
Dated: ________, 2011

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Stipulation To Dismiss Plaintiff’s Claims;
[Proposed] Order Granting Dismissal

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Case No. 11-00976

EXHIBIT 1 

SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
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This Settlement Agreement and Mutual Release of Claims (“AGREEMENT”) is entered
into between Global Community Monitor (“GCM”) and Alameda County Industries, Inc.
(“ACI”) (collectively, the “SETTLING PARTIES”) with respect to the following facts and
objectives:
RECITALS
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WHEREAS, GCM is a 501(c)(3) non-profit, public benefit corporation organized under
the laws of the State of California, dedicated to the protection, enhancement and restoration of
waters of the State of California, including waters adjacent to urbanized areas of San Francisco
Bay;
WHEREAS, ACI is a corporation organized under the laws of the State of California
that owns and operates a solid waste, green waste, and recycling facility located at 610 Aladdin
Avenue in San Leandro, California (the “Facility”) pursuant to State Water Resources Control
Board Water Quality Order No. 97-03-DWQ, National Pollutant Discharge Elimination System
General Permit No. CAS000001, Waste Discharge Requirements for Discharges of Storm Water
Associated with Industrial Activities Excluding Construction Activities (hereinafter, the
“General Permit”). A map of the Facility is attached hereto as Exhibit A and incorporated by
reference;
WHEREAS, on or about December 17, 2010, GCM provided ACI with a Notice of
Violation and Intent to File Suit (“60-Day Notice Letter”) under Section 505 of the Federal
Water Pollution Control Act (the “Act” or “Clean Water Act”), 33 U.S.C. § 1365;
WHEREAS, on March 2, 2011, GCM filed its Complaint in the United States District
Court for the Northern District of California against ACI (Global Community Monitor v.
Alameda County Industries, Inc., Case No. 3:11-cv-00976-EMC). A true and correct copy of the
Complaint, including the 60-Day Notice Letter, is attached hereto as Exhibit B and incorporated
by reference;

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WHEREAS, ACI denies any and all of GCM’s claims in its 60-Day Notice Letter and
Complaint;
WHEREAS, GCM and ACI, through their authorized representatives and without either
adjudication of GCM’s claims or admission by ACI of any alleged violation or other
wrongdoing, have chosen to resolve in full GCM’s allegations in the 60-Day Notice Letter and
Complaint through settlement and avoid the cost and uncertainties of further litigation; and
WHEREAS, GCM and ACI have agreed that it is in their mutual interest to enter into
this AGREEMENT setting forth the terms and conditions appropriate to resolving GCM’s
allegations set forth in the 60-Day Notice Letter and Complaint.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, GCM and ACI hereby agree as follows:
EFFECTIVE DATE
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1.

The term “Effective Date,” as used in this AGREEMENT, shall mean the last date

on which the signature of a party to this AGREEMENT is executed.
COMMITMENTS OF GCM
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2.

Stipulation to Dismiss and [Proposed] Order. Within ten (10) calendar days of

the expiration of the Agencies’ review period specified in Paragraph 18 below, GCM shall file a
Stipulation to Dismiss and [Proposed] Order thereon pursuant to Federal Rule of Civil Procedure
41(a)(2) with the United States District Court for the Northern District of California (“District
Court”), with this AGREEMENT attached and incorporated by reference, specifying that GCM
is dismissing all claims in GCM’s Complaint. Consistent with Paragraphs 24 and 25 herein, the
Stipulation to Dismiss and [Proposed] Order shall state that the District Court will maintain
jurisdiction through December 13, 2014 for purposes of resolving any disputes between the
SETTLING PARTIES with respect to any provision of this AGREEMENT. If the District Court
chooses not to enter the Order, this AGREEMENT shall be null and void.

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COMMITMENTS OF ACI
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3.

Compliance with General Permit. ACI agrees to operate the Facility in

compliance with the applicable requirements of the General Permit and Clean Water Act.
4.

Implemented Storm Water Controls. ACI shall maintain in good working

order all storm water collection and treatment systems currently installed or to be installed
pursuant to this AGREEMENT, including but not limited to, existing housekeeping measures.
5.

Additional Best Management Practices. By April 1, 2012, ACI shall

implement the following structural best management practices (“BMPs”) to improve the storm
water pollution prevention measures at the drop inlets, outfalls, and other industrial areas at the
Facility:
a.

ACI shall install a Clara Plug Flow Separator underground in the existing
storm drain line for the reduction of large solids (greater than 100 micron)
and oil & grease. The system will be housed in a 6’ x 8’ buried concrete
vault with an internal bypass weir for peak flow bypass and a 100 gpm
submersible pump.

b.

ACI shall install a Retenu Roughing Filtration System to reduce solids
down to 15-20 micron and associated heavy metals. The system will
include an inlet storage and backwash tank with the Retenu roughing
filter, with a total footprint of 9’ x 23’.

c.

ACI shall install an Aquip Enhanced Filtration system to reduce fine
particulates and heavy & dissociated metals in the storm water runoff
before discharge. The gravity discharge from the Aquip system can
discharge to the existing storm drain line. ACI shall use an Aquip 80SBE
to treat 100 gpm. The location of the Clara, Retenu, and Aquip systems
are shown on the schematic attached as Exhibit C.

d.

To reduce the overall volume of storm water being treated and based on
the analytical results of water samples of the Facility’s roof runoff
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showing all parameters of concern being below the Levels of Potential
Concern set forth in Paragraph 8 below, ACI shall install an upgraded
system of gutters to divert runoff from the facility’s roof past the treatment
system and directly to the storm water system.
e.

To improve storm water management controls in the Pit area, ACI shall
install a 95-foot valley gutter along the southeast edge of the Pit to
decrease storm water from entering the storm drain.

f.

ACI shall ensure that all storm water from the Pit shall be discharged to
the oil-water separator for eventual discharge into the sanitary sewer.

g.

ACI shall design removable metal or rubber covers for all drop inlets at
the Facility to prevent the accumulation of dirt, leaves and other sediment.
The covers shall be placed over all drop inlets on or before July 1st at the
end of each wet season, subsequent to appropriate maintenance of the
filters described above. The covers shall be removed prior to the first rain
event of the subsequent wet season. The covers shall be fitted to prevent
such materials from entering the drop inlets and designed such that the
covers will remain firmly in place while there is normal activity at the
Facility.

6.

Monitoring. ACI agrees to perform the monitoring described herein during the

2011-2012, 2012-2013, and 2013-2014 wet seasons.
a.

During the 2011-2012 and 2012-2013 wet seasons, ACI shall sample and
analyze storm water discharges from four (4) qualifying storm events that
result in discharge consistent with the requirements and protocols set forth
in the General Permit. During the 2013-2014 wet season, ACI shall
sample and analyze storm water discharges from three (3) qualifying
storm events that result in discharge consistent with the requirements and
protocols set forth in the General Permit.

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b.

ACI shall analyze each storm water sample taken in accordance with the
General Permit and this Agreement for, at a minimum, total suspended
solids, pH, oil and grease or total organic carbon, specific conductance,
aluminum, chemical oxygen demand, iron, zinc, copper, and lead.

c.

All maintenance, repair, and replacement activities relating to the
Facility’s storm water management program shall be recorded and
described on appropriate log books or sheets. Such logs shall include, but
not be limited to, filter repairs and replacements. Sample log sheets shall
be included in the Facility’s SWPPP. Completed logs for each wet season
shall be included as part of the Facility’s Annual Report submitted to the
San Francisco Bay Regional Water Quality Control Board (“Regional
Board”).

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Monitoring Results. Results from ACI’s sampling and analysis during the term

of this AGREEMENT shall be provided to GCM within 30 days of receipt of the sampling
results by ACI or its counsel.

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Meet and Confer Regarding Exceedence of Levels of Potential Concern. If

analytical results of storm water samples taken by ACI during the 2011-2012, 2012-2013, and
2013-2014 wet seasons indicate that storm water discharges from the Facility exceed the
following levels of concern – Total Suspended Solids: 100 mg/L; Specific Conductance: 200
µmhos/cm; Oil & Grease: 15 mg/L or Total Organic Carbon: 120 mg/L; pH: 6.5-8.5 s.u.;
Aluminum: 0.75 mg/L; Zinc: 0.117 mg/L; Iron: 1.0 mg/L; Copper: 0.0636 mg/L; Lead: 0.0816
mg/L; and Chemical Oxygen Demand: 120 mg/L – ACI agrees to take responsive actions to
improve its storm water management practices, including re-evaluating its structural and nonstructural BMPs and considering additional BMPs aimed at reducing levels observed in storm
water samples.
In furtherance of that objective, ACI shall prepare a written statement (“Memorandum”)
discussing:
(1) Any exceedance or exceedances;
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(2) An explanation of the possible cause(s) and/or source(s) of any exceedance;
and
(3) Responsive actions to improve its storm water management practices,
including modified or additional feasible best management practices
(“BMPs”) to be considered to further reduce the possibility of future
exceedance(s).
Such Memorandum shall be e-mailed and sent via first class mail to GCM not later than July
30th following the conclusion of each wet season.

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Any additional measures set forth in the Memorandum shall be implemented as

soon as practicable, but not later than the start of the subsequent wet season, except where the
SETTLING PARTIES agree in writing to defer implementation of specific measures in order to
effectively meet and confer in accordance with Paragraph 10. Within thirty (30) days of
implementation, ACI’s SWPPP shall be amended to include all additional BMP measures
designated in the Memorandum.

10.

Upon receipt of the Memorandum, GCM may review and comment on any

additional measures. If requested by GCM within thirty (30) days of receipt of such
Memorandum, GCM and ACI shall meet and confer and conduct a site inspection within sixty
(60) days after the due date of the Memorandum to discuss the contents of the Memorandum and
the adequacy of proposed measures to improve the quality of the Facility’s storm water to levels
at or below the Levels of Concern. If within twenty-one (21) days of the parties meeting and
conferring, the parties do not agree on the adequacy of the additional measures set forth in the
Memorandum, the SETTLING PARTIES may agree to seek a settlement conference with the
Judge assigned to this action pursuant to Paragraphs 24 and 25 below. If the SETTLING
PARTIES fail to reach agreement on additional measures, GCM may bring a motion before the
District Court consistent with Paragraphs 24 and 25 below. If GCM does not request a meet and
confer regarding the Memorandum within the twenty-one (21) day comment period provided for
in this paragraph, GCM shall waive any right to object to such Memorandum pursuant to this
AGREEMENT.

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11.

Any concurrence or failure to object by GCM with regard to the reasonableness of

any additional measures required by this AGREEMENT or implemented by ACI shall not be
deemed to be an admission of the adequacy of such measures should they fail to bring the
Facility’s storm water into compliance with applicable water quality criteria.
12.

In addition to any site inspections conducted as part of meeting and conferring on

additional measures set forth above, ACI shall permit representatives of GCM to perform one (1)
additional site visit to the Facility per year during normal daylight business hours during the term
of this AGREEMENT, provided that GCM provides ACI via e-mail with at least one week prior
written notice.
13.

Provision of Documents and Reports. During the life of this AGREEMENT,

ACI shall provide GCM with a copy of all documents submitted to the Regional Board or the
State Water Resources Control Board (“State Board”) concerning the Facility’s storm water
discharges, including but not limited to all documents and reports submitted to the Regional
Board and/or State Board as required by the General Permit. Such documents and reports shall
be mailed to GCM contemporaneously with submission to such agency. ACI also shall provide
GCM a copy of all documents referenced in this agreement, including but not limited to logs,
photographs, or analyses, within seven (7) days of a written request (via e-mail or regular mail)
by GCM.
14.

Amendment of SWPPP. Within sixty (60) days of the Effective Date of this

AGREEMENT, ACI shall amend the Facility’s SWPPP to incorporate all changes,
improvements, sample log forms, and best management practices set forth in or resulting from
this AGREEMENT. ACI shall ensure that all maps, tables, and text comply with the
requirements of the General Permit. ACI shall ensure that the SWPPP describes all structural
and non-structural BMPs, details the measures to be installed, and discusses why such BMPs will
be effective in addressing the pollutant sources at the Facility. A copy of the amended SWPPP
shall be provided to GCM within thirty (30) days of completion.
15.

MITIGATION PAYMENT. In recognition of the good faith efforts by ACI to

comply with all aspects of the General Permit and the Clean Water Act, the SETTLING
PARTIES agree that ACI will pay the sum of fifty thousand dollars ($50,000) to the Rose
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Foundation for Communities and the Environment (“Rose Foundation”) for the sole purpose of
providing grants to environmentally beneficial projects in the San Francisco Bay watershed
relating to water quality improvements. Payment shall be provided to the Rose Foundation as
follows: Rose Foundation, 6008 College Avenue, Oakland, CA 94618, Attn: Tim Little.
Payment shall be made by ACI to the Rose Foundation within fifteen (15) calendar days of the
District Court’s entry of the Order dismissing the action described in Paragraph 2 of this
AGREEMENT. ACI shall copy GCM with any correspondence and a copy of the check sent to
the Rose Foundation. The Rose Foundation shall provide notice to the SETTLING PARTIES
within thirty (30) days of when the funds are dispersed by the Rose Foundation, setting forth the
recipient and purpose of the funds.
16.

Fees, Costs, and Expenses. As reimbursement for GCM’s investigative, expert

and attorneys’ fees and costs, ACI shall pay GCM the sum of nineteen thousand dollars
($19,000). Payment shall be made by ACI within fifteen (15) calendar days of the District
Court’s entry of the Order dismissing the action described in Paragraph 2 of this AGREEMENT.
Payment by ACI to GCM shall be made in the form of a single check payable to “Lozeau Drury
LLP Attorney-Client Trust Account,” and shall constitute full payment for all costs of litigation,
including investigative, expert and attorneys’ fees and costs incurred by GCM that have or could
have been claimed in connection with GCM’s claims, up to and including the Effective Date of
this AGREEMENT.
17.

Compliance Oversight Costs: As reimbursement for GCM’s future fees and

costs that will be incurred in order for GCM to monitor ACI’s compliance with this
AGREEMENT and to effectively meet and confer and evaluate monitoring results for the
Facility, ACI agrees to reimburse GCM for fees and costs incurred in overseeing the
implementation of this AGREEMENT up to but not exceeding four thousand ($4,000.00) per
wet season. Fees and costs reimbursable pursuant to this paragraph may include, but are not
limited to, those incurred by GCM or its counsel to conduct site inspections, review of water
quality sampling reports, review of annual reports, discussion with representatives of ACI
concerning potential changes to compliance requirements, preparation and participation in meet
and confer sessions and mediation, and water quality sampling. GCM shall provide an invoice
containing an itemized description for any fees and costs claimed. Up to three annual payments
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(one addressing monitoring associated with the 2011-2012 wet season, one addressing
monitoring associated with the 2012-2013 wet season, and one addressing any monitoring
associated with the 2013-2014 wet season,) shall be made payable to “Lozeau Drury LLP
Attorney-Client Trust Account” within thirty (30) days of receipt of an invoice from GCM which
contains an itemized description of fees and costs incurred by GCM to monitor implementation
of the SETTLEMENT AGREEMENT during the previous twelve (12) months.

18.

Review by Federal Agencies. GCM shall submit this AGREEMENT to the U.S.

EPA and the U.S. Department of Justice (hereinafter, the “Agencies”) via certified mail, return
receipt requested, within five (5) days after the Effective Date of this AGREEMENT for review
consistent with 40 C.F.R. § 135.5. The Agencies’ review period expires forty-five (45) days
after receipt of the AGREEMENT by both Agencies, as evidenced by the return receipts, copies
of which shall be provided to ACI upon receipt by GCM. In the event that the Agencies
comment negatively on the provisions of this AGREEMENT, GCM and ACI agree to meet and
confer to attempt to resolve the issue(s) raised by the Agencies. If GCM and ACI are unable to
resolve any issue(s) raised by the Agencies in their comments, GCM and ACI agree to
expeditiously seek a settlement conference with the Judge assigned to the Complaint in this
matter to resolve the issue(s).
NO ADMISSION OR FINDING
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19.

Neither this AGREEMENT nor any payment pursuant to the AGREEMENT shall

constitute evidence or be construed as a finding, adjudication, or acknowledgment of any fact,
law or liability, nor shall it be construed as an admission of violation of any law, rule or
regulation. However, this AGREEMENT and/or any payment pursuant to the AGREEMENT
may constitute evidence in actions seeking compliance with this AGREEMENT.
MUTUAL RELEASE OF LIABILITY AND COVENANT NOT TO SUE
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20.

In consideration of the above, and except as otherwise provided by this

AGREEMENT, the SETTLING PARTIES hereby forever and fully release each other and their
respective successors, assigns, officers, agents, employees, and all persons, firms and
corporations having an interest in them, including Alameda County Industries LLC and Alameda
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County Industries AR, Inc., from any and all claims and demands of any kind, nature, or
description whatsoever, and from any and all liabilities, damages, injuries, actions or causes of
action, either at law or in equity, which the SETTLING PARTIES have against each other
arising from GCM’s allegations and claims as set forth in the 60-Day Notice Letter and
Complaint up to and including the Termination Date of this AGREEMENT.
21.

The SETTLING PARTIES acknowledge that they are familiar with section 1542

of the California Civil Code, which provides:
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.
The SETTLING PARTIES hereby waive and relinquish any rights or benefits they may have
under California Civil Code section 1542 with respect to any other claims against each other
arising from, or related to, the allegations and claims as set forth in the 60-Day Notice Letter and
Complaint up to and including the Termination Date of this AGREEMENT.
22.

For the period beginning on the Effective Date and ending on December 13, 2014,

GCM agrees that neither GCM, its officers, executive staff, members of its governing board nor
any organization under the control of GCM, its officers, executive staff, or members of its
governing board, will file any lawsuit against ACI seeking relief for alleged violations of the
Clean Water Act or violations of the General Permit at its facility located at 610 Aladdin Avenue
in San Leandro. GCM further agrees that, beginning on the Effective Date and ending on
December 13, 2014, GCM will not support other lawsuits, by providing financial assistance,
personnel time or other affirmative actions, against ACI’s facility located at 610 Aladdin Avenue
in San Leandro that may be proposed by other groups or individuals who would rely upon the
citizen suit provision of the Clean Water Act to challenge the Facility’s compliance with the
Clean Water Act or the General Permit.
TERMINATION DATE OF AGREEMENT
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23.

This AGREEMENT shall terminate on December 13, 2014.
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DISPUTE RESOLUTION PROCEDURES
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24.

Except as specifically noted herein, any disputes with respect to any of the

provisions of this AGREEMENT shall be resolved through the following procedure. The
SETTLING PARTIES agree to first meet and confer to resolve any dispute arising under this
AGREEMENT. In the event that such disputes cannot be resolved through this meet and confer
process, the SETTLING PARTIES agree to request a settlement meeting before the Magistrate
Judge assigned to this action. In the event that the SETTLING PARTIES cannot resolve the
dispute by the conclusion of the settlement meeting with the Magistrate Judge, the SETTLING
PARTIES agree to submit the dispute via motion to the District Court.
25.

In resolving any dispute arising from this AGREEMENT, the Court shall have

discretion to award attorneys’ fees and costs to either party. The relevant provisions of the thenapplicable Clean Water Act and Rule 11 of the Federal Rules of Civil Procedure shall govern the
allocation of fees and costs in connection with the resolution of any disputes before the Distrct
Court. The District Court shall award relief limited to compliance orders and awards of
attorneys’ fees and costs, subject to proof. The SETTLING PARTIES agree to file any waivers
necessary for the Magistrate Judge to preside over any settlement conference and motion
practice.
BREACH OF SETTLEMENT AGREEMENT
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26.

Impossibility of Performance. Where implementation of the actions set forth in

this AGREEMENT, within the deadlines set forth in those paragraphs, becomes impossible,
despite the timely good faith efforts of the SETTLING PARTIES, the party who is unable to
comply shall notify the other in writing within seven (7) days of the date that the failure becomes
apparent, and shall describe the reason for the non-performance. The SETTLING PARTIES
agree to meet and confer in good faith concerning the non-performance and, where the
SETTLING PARTIES concur that the non-performance was or is impossible, despite the timely
good faith efforts of one of the SETTLING PARTIES, new performance deadlines shall be
established. In the event that the SETTLING PARTIES cannot timely agree upon the terms of
such a stipulation, either of the SETTLING PARTIES shall have the right to invoke the dispute
resolution procedure described herein.
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GENERAL PROVISIONS
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27.

Construction. The language in all parts of this AGREEMENT shall be construed

according to its plain and ordinary meaning, except as to those terms defined by law, in the
General Permit, Clean Water Act or specifically herein.
28.

Choice of Law. This AGREEMENT shall be governed by the laws of the United

States, and where applicable, the laws of the State of California.
29.

Severability. In the event that any provision, section, or sentence of this

AGREEMENT is held by a court to be unenforceable, the validity of the enforceable provisions
shall not be adversely affected.
30.

Correspondence. All notices required herein or any other correspondence

pertaining to this AGREEMENT shall be sent by regular, certified, overnight mail, or e-mail as
follows:
If to GCM:
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Denny Larson
Global Community Monitor
P.O. Box 1784
El Cerrito, CA 94530
[e-mail]
And to:
Michael R. Lozeau
Douglas J. Chermak
Lozeau Drury LLP
410 12th Street, Suite 250
Oakland, CA 94607
Tel: [phone]
[e-mail]
[e-mail]
If to ACI:
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Louie Pellegrini
Alameda County Industries, Inc.
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610 Aladdin Avenue
San Leandro, CA 94577
And to:
David Cohen
Cohen & Ostler, A Professional Corporation
455 N. Whisman Road, Suite 100
Mountain View, California 94043
Michael Brady
Brady & Vinding
400 Capitol Mall, Suite 2640
Sacramento, CA 95814
[e-mail]
Notifications of communications shall be deemed submitted on the date that they are emailed, postmarked and sent by first-class mail or deposited with an overnight mail/delivery
service. Any change of address or addresses shall be communicated in the manner described
above for giving notices.
31.

Counterparts. This AGREEMENT may be executed in any number of

counterparts, all of which together shall constitute one original document. Telecopied, scanned
(.pdf), and/or facsimiled copies of original signature shall be deemed to be originally executed
counterparts of this AGREEMENT.
32.

Assignment. Subject only to the express restrictions contained in this

AGREEMENT, all of the rights, duties and obligations contained in this AGREEMENT shall
inure to the benefit of and be binding upon the SETTLING PARTIES, and their successors and
assigns.
33.

Modification of the Agreement: This AGREEMENT, and any provisions herein,

may not be changed, waived, discharged or terminated unless by a written instrument, signed by
the SETTLING PARTIES.
34.

Full Settlement. This AGREEMENT constitutes a full and final settlement of

this matter. It is expressly understood and agreed that the AGREEMENT has been freely and
voluntarily entered into by the SETTLING PARTIES with and upon advice of counsel.
13
SETTLEMENT AGREEMENT: Global Community Monitor v. Alameda County Industries, Inc. –
Case No. 3:11-cv-00976-EMC