Northern California River Watch v. Oakland Maritime Support Services, Inc. et al

Filing 126

ORDER by Judge Claudia Wilken FOR APPROVAL OF SETTLEMENT AGREEMENT. Granting 125 Stipulation.(finding as moot 106 Motion to Withdraw as Attorney. ; terminating 122 Stipulation) (ndr, COURT STAFF) (Filed on 2/10/2014)

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Michael R. Lozeau (State Bar No. 142893)
Richard T. Drury (State Bar No. 163559)
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 Plaintiffs
NORTHERN CALIFORNIA RIVER WATCH,
TEAMSTERS LOCAL 70, and EAST BAY
ALLIANCE FOR A SUSTAINABLE ECONOMY

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NORTHERN CALIFORNIA RIVER WATCH,
a non-profit corporation; TEAMSTERS
LOCAL 70, a labor organization; and EAST
BAY ALLIANCE FOR A SUSTAINABLE
ECONOMY, a non-profit organization,

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Case No.: 4:10-cv-3912 CW-JSC
STIPULATION FOR APPROVAL OF
SETTLEMENT AGREEMENT;
[PROPOSED] ORDER

Plaintiffs,

Date: CMC February 26, 2014;
Time: 2:00
Courtroom 2, 4th Floor

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v.
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OAKLAND MARITIME SUPPORT
SERVICES, INC., a corporation; WILLIAM
ABOUDI, an individual; and JORGE
GONZALEZ RIVERA d.b.a. CHRISTIAN
BROTHERS TRUCK SERVICES, an
individual; REDEVELOPMENT AGENCY OF
THE CITY OF OAKLAND, a local public
agency, and CITY OF OAKLAND, a
municipality;

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Hon. Presiding Judge Claudia Wilken

Defendants.

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STIPULATION
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WHEREAS, Plaintiffs Northern California River Watch, Teamsters Local 70 and East Bay
Alliance For A Sustainable Economy and Defendants Oakland Maritime Support Services, Inc.,

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William Aboudi, Oakland Redevelopment Successor Agency, and the City of Oakland

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(collectively “Parties), through their authorized representatives and without either adjudication of
062326\5957377v1

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Stipulation for Approval of Settlement Agreement; [Proposed] Order

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Plaintiffs’ claims or admission by Defendants of any alleged violation or other wrongdoing, have

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chosen to resolve in full by way of settlement the allegations of Plaintiffs as set forth in the

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Complaint filed in this action, thereby avoiding the costs and uncertainties of further litigation.

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A copy of the Settlement Agreement entered into by the Parties is attached hereto as Exhibit A
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and incorporated herein by reference; and
WHEREAS, as required by 33 U.S.C. § 1365(c)(3), Plaintiffs submitted the Settlement

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Agreement via certified mail, return receipt requested, to the U.S. Environmental Protection

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Agency and the U.S. Department of Justice for review pursuant to 40 C.F.R. § 135.5, and, on

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February 3, 2014, the Department of Justice filed a letter with the Court indicating that the
United States had no objection to the Court’s entry of the Consent Agreement;

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WHEREAS, the Parties agree that, in light of the United States not objecting to the
Settlement Agreement, this stipulation fulfills the parties’ obligation pursuant to Paragraph 3 of
the Settlement Agreement to jointly move the Court for approval of the Agreement;
NOW, THEREFORE, IT IS HEREBY STIPULATED and agreed, by and between the
Parties that the Court be requested to issue an order approving the Settlement Agreement
attached hereto as Exhibit A.

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Dated: February 7, 2014
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/s/ Michael R. Lozeau
MICHAEL R. LOZEAU
Attorney for Plaintiffs

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Dated: February 7, 2014
/s/ Meredith E. Brown
(as authorized on 2/7/2014)
MEREDITH E. BROWN
Attorney for Defendants
OAKLAND MARITIME SUPPORT
SERVICES, INC. and WILLIAM ABOUDI

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062326\5957377v1

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Stipulation for Approval of Settlement Agreement; [Proposed] Order

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Dated: February 7, 2014
/s/ Robert Doty
(as authorized on 2/7/2014)
ROBERT DOTY
Attorney for Defendants
CITY OF OAKLAND and
REDEVELOPMENT AGENCY OF THE
CITY OF OAKLAND

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ORDER

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WHEREAS, Plaintiffs Northern California River Watch, Teamsters Local 70 and East Bay
Alliance For A Sustainable Economy and Defendants Oakland Maritime Support Services, Inc.,

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William Aboudi, Oakland Redevelopment Successor Agency, and the City of Oakland,

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collectively referred to herein as “Parties,” have entered into the Settlement Agreement attached

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hereto as Exhibit A;

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WHEREAS, the Parties have consented to approval of the foregoing Settlement
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Agreement and request the Court’s approval and entry thereof;
WHEREAS, on February 3, 2014, the United States Attorney General and the

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Administrator of the United States Environmental Protection Agency filed correspondence with

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the Court indicating that the United States has reviewed the Settlement Agreement and does not

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object to its entry by this Court;

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WHEREAS, the Court has reviewed the Settlement Agreement, and fully considered all

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comments received thereon to date from the Parties hereto, the United States Attorney General
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and the United States Environmental Protection Agency;
WHEREAS, the Court has fully considered the Parties’ request to approve this
Settlement Agreement;
WHEREAS, the Court finds the Settlement Agreement to be: (1) fair, adequate and
reasonable; (2) consistent with applicable laws; and (3) protective of the public interest; and

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062326\5957377v1

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Stipulation for Approval of Settlement Agreement; [Proposed] Order

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WHEREAS, good cause appearing therefor, this Settlement Agreement is hereby
approved.

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IT IS SO ORDERED.

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Dated: February 10 2014
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Hon. Claudia Wilken
United States District Chief Judge

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062326\5957377v1

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Stipulation for Approval of Settlement Agreement; [Proposed] Order

EXHIBIT A 

SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS

This Settlement Agreement and Release of Claims ("Agreement") is entered into by and
between Northern California River Watch, Teamsters Local 70, East Bay Alliance For A
Sustainable Economy, Oakland Maritime Support Services, Inc., William Aboudi, the Oakland
Redevelopment Successor Agency, on behalf of Defendant Redevelopment Agency of the City of
Oakland, and the City of Oakland (each a "Party" and collectively, the "Settling Parties") with
respect to the following facts and objectives:
RECITALS
WHEREAS, Northern California River Watch ("NCRW") 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 San Francisco Bay and other California waters;
WHEREAS, Teamsters Local 70 ("Teamsters") is a labor organization based in

Oakland, California that advocates for the health and well-being of workers throughout the East
Bay, including members who live, work and recreate in and around the Port of Oakland area;
WHEREAS, East Bay Alliance For A Sustainable Economy ("E-BASE") is a non-

partisan, non-profit organization advocating on behalf of workers and their families in the East
Bay in order to make their communities vibrant and healthy places to live, work and play;
WHEREAS, Oakland Maritime Support Services, Inc. ("OMSS") is a corporation

organized under the laws of the State of California that operated a transportation support services
facility located at 11 Burma Road in Oakland, California (the "Facility"), a portion ofwhich is
subject 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, William Aboudi is the president and sole shareholder of Oakland Maritime

Support Services, Inc. and had day-to-day responsibility for management ofthe Facility;

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WHEREAS, the Redevelopment Agency of the City of Oakland ("Redevelopment
Agency") was a public body, corporate and politic, created pursuant to the California
Community Redevelopment Law; was the owner of the real property on which the Facility was
located at the time the alleged violations in the 60-day Notice Letters (as defined below) were
occurring; but effective February 1, 2012, ceased to exist, by operation of statute, and had its
non-housing assets and liabilities transferred, by statute, to the Oakland Redevelopment
Successor Agency ("ORSA");

WHEREAS, the City of Oakland ("City") is a municipal corporation organized by
charter; was originally a defendant in this action; was dismissed without prejudice by stipulation;
is now the owner of the real property on which the Facility was located; and received as oflate
August, 2013, confirmation from the California Department of Finance and/or the State
Controller's Office that its ownership of that real property will not be disputed by those state
agencies;

WHEREAS, Jorge Gonzalez Rivera d.b.a. Christian Brothers Truck Services ("Christian
Brothers") is an individual engaged in truck repair and maintenance services at the Facility;

WHEREAS, on or about August 8, 2007, OMSS subleased an area of its site to Christian
Brothers for a truck maintenance operation;

WHEREAS, on or about February 17,2010, NCRW provided OMSS, William Aboudi,
and a number ofOMSS subtenants with a Notice ofViolation 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 August 31,2010, NCRW filed its Complaint in the United States
District Court for the Northern District of California against OMSS, William Aboudi, and
Christian Brothers (Northern California River Watch v. Oakland Maritime Support Services,

Inc., et al., Case No. 4:10-cv-3912 CW-JSC);
WHEREAS, on or about September 2, 2010, NCRW, Teamsters and E-BASE
(collectively "Plaintiffs") provided OMSS, William Aboudi, Christian Brothers, Redevelopment
Agency, the City, the City's Community and Economic Development Agency, and others with
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an additional Notice of Violation and Intent to File Suit under Section 505 of the Clean Water
Act;

WHEREAS, on November 2, 2010, Plaintiffs filed a First Amended Complaint adding
the Redevelopment Agency, the City, and others as defendants;

WHEREAS, on February 23,2011, Plaintiffs voluntarily dismissed the City and the
Community and Economic Development Agency as defendants in the action;

WHEREAS, to facilitate implementation of this Agreement the City is (by stipulation
and order, unopposed motion to amend, or other mutually acceptable means) being added back
as a defendant;

WHEREAS, ORSA and the City deny any and all of Plaintiffs' claims in its 60-Day
Notice Letters and the First Amended Complaint;

WHEREAS, OMSS installed Triton filters in storm drains at the Facility on or around
June 15, 2010; filed a Notice oflntent to comply with the General Permit on November 4, 2010;
and finalized a Storm Water Pollution Protection Plan ("SWPPP") in May 2012;

WHEREAS, on or about January 15,2012, OMSS installed a berm, pump, filter and oil
water separator to collect and treat storm water from the Facility's truck repair and maintenance
services area, continued to implement various management measures at the Facility, and has
agreed to take additional storm water control measures, as set forth in this Agreement;

WHEREAS, the Redevelopment Agency provided support for certain ofOMSS' storm
water related improvements through rent credits and/or similar accommodations;

WHEREAS, OMSS admits that it unknowingly discharged storm water from the
Facility's truck repair and maintenance services area without an NPDES permit, however, it has
not been determined that said discharge(s) exceed or exceeded any NPDES permit limits, and
that from August 8, 2008 through November 3, 2010 it operated in contravention of Section
301 (a) of the Clean Water Act by discharging storm water associated with industrial activity
from the Facility's truck repair and maintenance services without a NPDES permit and that from
November 4, 2010 through January 15,2012, it operated in contravention of Section 301(a) of
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the Clean Water Act by failing to implement the Best Available Technology Economically
Achievable ("BAT") and Best Conventional Pollutant Control Technology ("BCT") at the
Facility's truck repair and maintenance services area;

WHEREAS, Christian Brothers did not respond to the First Amended Complaint or
otherwise make any appearance in this action;

WHEREAS, the Settling Parties engaged in various dispute resolution efforts,
culminating with a July 22, 2013 settlement conference supervised by Magistrate Judge Cousins;

WHEREAS, in August 2013, the City approved, a lease for an approximately five-acre
site in the North Gateway area of the former Oakland Army Base to provide an interim location
for OMSS' transportation support services facility (the "Interim Lease"), and the City and OMSS
were negotiating a Lease Development Disposition Agreement ("LDDA") pursuant to which
OMSS would relocate the Facility on a long-term basis, with the term of that agreement being
established in the "LDDA'');

WHEREAS, the Settling Parties, through their authorized representatives and without
adjudication of Plaintiffs' claims or admission by ORSA or the City of any alleged violation or
other wrongdoing, have chosen to resolve in full Plaintiffs' allegations in the 60-Day Notice
Letters and First Amended Complaint through settlement so as to avoid the cost and uncertainties
of further litigation;

WHEREAS, the Settling Parties have agreed that it is in their mutual interest to enter
into this Agreement setting forth the terms and conditions appropriate to resolving Plaintiffs'
allegations set forth in the 60-Day Notice Letters and First Amended Complaint;

WHEREAS, in furtherance of this Agreement the Settling Parties have already filed with
the District Court (as that term is defined below) a Joint Notice Of Settlement And Request To
Vacate Pending Dates And Reset The August 14,2013, Case Management Conference (the
"Joint Notice of Settlement")

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WHEREAS, the City, Teamsters, and E-BASE are signatories to a December 2012
Cooperation Agreement concerning the Oakland Army Base project and will continue to comply
with their obligations thereunder; and,
WHEREAS, where a specific party is identified as responsible for carrying out a term or
condition of this AGREEMENT, no other party shall be liable for or responsible for complying
with such term or condition. Thus, OMSS is the only party responsible for the compliance
provisions set forth at Paragraphs 7 through 11 ;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Settling Parties hereby agree as follows:
EFFECTIVE DATE
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 PLAINTIFFS
2.

Submission Of Settlement For Review By Federal Agencies. Plaintiffs shall

submit this Agreement to the U.S. EPA and the U.S. Department of Justice (hereinafter, the
"Agencies") for review consistent with 40 C.F.R. § 135 via certified mail, return receipt
requested, within five (5) days after all counsel have confirmed the agreement is satisfactory as
to form, and Plaintiffs and OMSS have executed the Agreement (it being understood and
acknowledged by Plaintiffs, OMSS, and Aboudi that City cannot execute the document until
City Council returns to its normal meeting calendar as of mid-September, 2013 and thereafter
formally approves Agreement by resolution or other similar means).
3.

Submission of Settlement For Court Approval. Within fifteen (15) days of the

end of the Agencies' review period and the City's execution of this Agreement, whichever is
later, Plaintiffs will jointly move with OMSS, Aboudi, and the City for an Order from the United
States District Court for the Northern District of California ("District Court") approving the
settlement reflected in this Agreement. The moving parties will cooperate with one another to
address, through appropriate legal arguments, declarations, and/or other supporting materials any

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negative comments submitted by the Agencies. If the District Court does not to enter the Order
approving this Agreement, any Party may elect to terminate its participation in this Agreement
and so notify the other Parties. In that event, the Settling Parties will promptly meet and confer
in good faith to attempt to address any objections identified by the Court. If the Settling Parties
cannot agree to alter the settlement terms to resolve any such objections to the Court's
satisfaction, this Agreement shall be null and void; the Settling Parties shall be restored to their
positions as they existed on July 22, 2013; and they shall promptly submit a joint request for the
Court to schedule a case management conference to reset discovery, pre-trial, and trial-related
deadlines.
4.

Stipulation to Dismiss and [Proposed] Order. Within five (5) days of the

Court's order approving this Agreement and payment of all sums required by Paragraphs 13 and
14, below, Plaintiffs shall, pursuant to Federal Rule of Civil Procedure 41(a)(2), file a Stipulation
to Dismiss with Prejudice and [Proposed] Order with the District Court and conforming to
Exhibit B, hereto, with this Agreement attached and incorporated by reference, specifying that
Plaintiffs are dismissing all claims in the Amended Complaint. If the District Court for any
reason does not enter an order dismissing this action with prejudice consistent with this
Agreement, the payments required by Paragraphs 13 and 14 shall be promptly reversed; the
Settling Parties will meet and confer in good faith to attempt to address whatever issues
prevented the Court from confirming the dismissal; and if the Settling Parties cannot agree to
alter the settlement terms to address the Court's concerns this Agreement shall be null and void,
the Settling Parties shall be restored to their positions as they existed on July 22, 2013; and they
shall promptly submit a joint request for the Court to schedule a case management conference to
reset discovery, pre-trial, and trial-related deadlines.
5.

No Opposition To The Interim Lease Or The LDDA. Plaintiffs, including their

officers, directors, employees, and agents, each agree that they will not, directly or indirectly,
file, finance, participate in, or support any legal challenge to the Interim Lease, the LDDA or
similar document the gist of which is to provide for a truck parking/servicing facility comparable
to the Facility and operated by OMSS or another Aboudi-affiliated entity. Plaintiffs, their
officers, directors, employees, and agents further agree not to, directly or indirectly, file, finance,
participate in, or support any legal challenge to any land use approval or CEQA/NEP A document

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issued in association with the Interim Lease, the LDDA or similar agreement concerning a site
located proximate to the Oakland Army Base and/or the Port of Oakland (i.e. the area between
Interstate 80 to the north, Frontage Road/Wood Street to the east, 7th Street to the south, and the
San Francisco Bay shoreline to the west). Plaintiffs' agreement to not file, finance, participate
in, or support, directly or indirectly, any legal challenge to the Interim Lease, the LDDA or
comparable document, and any associated CEQA or NEP A documents, applies only to the
Interim Lease, any modification ofthat lease, and the LDDA or similar agreement currently
being negotiated by the City and Aboudi that accomplishes the relocation of the OMSS Facility
from the 11 Burma Road site. Plaintiffs do not waive any rights to file any legal challenges to
any other future leases, lease extensions, lease modifications, disposition and development
agreements, or similar agreements between the City and Mr. Aboudi, OMSS or any other
Aboudi-affiliated entity as well as any related CEQA or NEP A documents.
6.

This Agreement shall not impose any limitations on individuals who are merely

members of a plaintiff organization. Nor shall this Agreement prevent Plaintiffs, including their
officers, directors, employees, and agents, from appearing at City Council meetings or similar
public meetings to express their personal views, or an organization's views in opposition to the
City maintaining an arrangement with OMSS comparable to the lease at the Facility. This
Agreement also is not intended to and does not affect the ability of Plaintiffs and individuals
affiliated with them to meet privately with City Council members and City administrators and
staff, including to state views in opposition to the City maintaining an arrangement with OMSS
comparable to the lease at the Facility.
COMMITMENTS OF DEFENDANTS

7.

Compliance with General Permit. To the extent it continues to operate the

Facility, OMSS agrees to operate the Facility in compliance with the applicable requirements of
the General Permit and Clean Water Act.
8.

Implemented Storm Water Controls. To the extent it continues to operate the

Facility, OMSS 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.

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designed such that the covers will remain firmly in place while there is
normal activity at the Facility.
e.

OMSS shall ensure that no fueling activities occur at the Facility outside
of the bermed maintenance area identified on Exhibit A.

f.

OMSS shall ensure that no tire changing or tire repair activities occur at
the Facility outside of the bermed maintenance area identified on Exhibit
A.

g.

OMSS shall ensure that no vehicle washing occurs at the Facility.

h.

OMSS shall install and maintain Triton filters described in Exhibit C in
each and every drop inlet at the Facility outside of the bermed
maintenance area.

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OMSS shall maintain the asphalt surface at the Facility by repairing pot
holes in a manner that will maintain a reasonably even surface for
sweeping in the parking lot.

10.

Increased Housekeeping Measures. Within Thirty (30) days ofthe Effective

Date, and provided that OMSS is still operating the Facility, OMSS shall institute the following
accelerated sweeping schedule at the Facility:
a.

During the rainy season, OMSS shall conduct weekly sweeping of the
accessible areas of the entire Facility, including the parking lot area, and
the parking stalls. OMSS shall conduct additional sweeping as needed
prior to any anticipated storm events.

b.

OMSS shall include a narrative description of its sweeping program in the
Storm Water Pollution Prevention Plan ("SWPPP"). Sweeper operators
will be provided with a log sheet attached to a clip board which will be
maintained at the Facility to document the dates and times that the
sweepers are operated. A sample blank log sheet will be included in the
Facility's Annual Report and the SWPPP.
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11.

Amendment ofSWPPP and SWMP. Within thirty (30) days ofthe Effective

Date, and provided it is still operating the Facility, OMSS shall amend the Facility's SWPPP and
the Facility's Storm Water Monitoring Plan ("SWMP") to incorporate all changes,
improvements, sample log forms, and best management practices set forth in or resulting from
this Agreement. OMSS shall ensure that all maps, tables, and text comply with the requirements
of the General Permit. OMSS shall ensure that the SWPPP describes all structural and nonstructural 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 and
SWMP shall be provided to Plaintiffs within thirty (30) days of completion. Specific
improvements to the Facility's map include the following: identification of the storm water
discharge locations, a key describing the symbols on the map, indication ofthe direction of storm
water flows/drainage areas, indication of where materials are directly exposed to precipitation,
and location of any structural control measures.
12.

City Not Responsible For Paragraphs 7-11. Plaintiffs agree that neither the

City, nor ORSA, nor any Party or Entity other than OMSS shall have any responsibility or
obligation to perform any of the measures called for in Paragraphs 7-11. Instead, Paragraphs 711 are binding only on Plaintiffs and OMSS.
13.

Mitigation Payment. In recognition of the good faith efforts by OMSS to

comply with all aspects of the General Permit and the Clean Water Act, the Redevelopment
Agency's assistance to OMSS with that effort, the upcoming rehabilitation and reconstruction of
the storm water infrastructure at and near the former Oakland Army Base and the Port of
Oakland, the current shortage in that area of workers with the training and skills needed to
support the upcoming infrastructure rehabilitation and reconstruction process, and in lieu of
payment by Defendants of any penalties which have been disputed but could have been assessed
if this action had been adjudicated adverse to Defendants, the Settling Parties agree that
Defendants will contribute Two-Hundred Thousand dollars ($200,000.00) to the West Oakland
Job Resource Center ("WOJRC"), a public benefit entity that (1) as ofthe Effective Date is being
formed to, among other things, develop and facilitate a local labor force able to support the
reconstruction of storm water infrastructure, and other infrastructure, at the Oakland Army Base
and (2) will be supervised by an oversight commission in which Plaintiffs Teamsters and

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EBASE, or their affiliates, participate (i.e., the same commission that will be enforcing the
Community Jobs Policies and Cooperation Agreement in which certain Plaintiffs are parties).
Defendants' contribution to WOJRC shall be made within thirty (30) days of the Court's order
approving this Agreement as contemplated in Paragraph 3. The funds shall be designated with a
unique account number/code string maintained by the City until a qualified non-profit fiscal
agent has been selected for WORJC pursuant to an upcoming (as of the Effective Date) RFP
process. The City shall provide notice to Plaintiffs pursuant to Paragraph 22, below, confirming
the transfer and the account code corresponding to Defendants' contribution to WOJRC. Subject
to the oversight commission's supervision, City and the fiscal agent chosen through the RFP
process will cause WOJRC to devote the funds provided by Defendants to developing within the
local labor force pre-apprentice and apprentice training for and placement in positions focused
on storm water infrastructure construction; storm water management system design,
construction, and maintenance; and associated climate change response management for the
Oakland Army Base, the Port of Oakland, and the industrial facilities in the industrial areas
adjacent and/or near to the Army Base and Port.
14.

Fees, Costs, and Expenses. As reimbursement for Plaintiffs investigative,

expert and attorneys' fees and costs, Defendants shall pay Plaintiffs the sum of One Hundred
Thousand dollars ($100,000.00). Payment shall be made by Defendants within thirty (30)
calendar days of the Court's order approving this Agreement as contemplated in Paragraph 3.
Payment by Defendants to Plaintiffs shall be made in the form of a single check payable to
"Lozeau Drury LLP," and shall constitute full payment for all costs of litigation, including
investigative, expert and attorneys' fees and costs incurred by Plaintiffs that have or could have
been claimed in connection with Plaintiffs' claims, up to and including the filing of the
Stipulation to Dismiss with Prejudice and [Proposed] Order as contemplated in Paragraph 4 of
this Agreement.
15.

Allocation Among Defendants. The allocation ofthe Mitigation Payment, Fees,

Costs, and Expenses as between the City, OMSS, and William Aboudi will be addressed in an
agreement involving only those three Parties and not Plaintiffs.

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OTHER PROVISIONS
16.

Review by Federal Agencies. 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 the Settling Parties upon receipt by Plaintiffs. In the event
that the Agencies comment negatively on the provisions of this Agreement, the Settling Parties
agree to meet and confer to attempt to resolve the issue(s) raised by the Agencies. If the Settling
Parties are unable to resolve any issue(s) raised by the Agencies in their comments, the Settling
Parties agree to expeditiously seek a settlement conference or mediation to resolve the issue(s).
17.

No Admissions. With the limited exception ofthe admissions made by OMSS in

the above Recitals, which may not be used at trial (should this action proceed to trial) or contrary
to the provisions in Paragraph 5, above, 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
contravention 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.
18.

Release and Covenant Not To Sue. In consideration of the above, and except as

otherwise provided by this Agreement, Plaintiffs hereby forever and fully release OMSS,
Aboudi, Redevelopment Agency, ORSA, and the City, and each of them, including their
respective successors, assigns, officers, agents, employees, and all persons, firms and
corporations having an interest in them, 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 Plaintiffs have arising from or relating to
Plaintiffs' allegations and claims as set forth in the 60-Day Notice Letters and First Amended
Complaint for violations alleged to have occurred at the Facility up to and including the
Effective Date of this Agreement. Plaintiffs' acknowledge that they are familiar with section
1542 of the California Civil Code, which provides:

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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.
Plaintiffs' 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 Letters and First Amended
Complaint for violations alleged to have occurred at the Facility up to and including the
Effective Date of this Agreement.
GENERAL PROVISIONS

19.

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, the Clean Water Act or specifically herein. The District Court shall retain
jurisdiction over the Parties and the subject matter to resolve any disputes arising out of or
concerning the interpretation of this Agreement.
20.

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

States, and where applicable, the laws of the State of California.
21.

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

Agreement is held by a court to be unenforceable, the validity of the remaining provisions shall
not be adversely affected provided that the partial invalidation does not substantially impair the
consideration to be received by any Party.
22.

Correspondence. All notices required herein or any other correspondence

pertaining to this Agreement shall be sent by regular, certified, or overnight mail as follows:
If to Plaintiffs:
Lisa H. Mador
Northern California River Watch
500 North Main Street, Suite 110
Sebastopol, CA 95472
[e-mail]

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Douglas Bloch
Teamsters Local 70
400 Roland Way
Oakland, CA 94621
Doug@teamj c7 .org
Nikki Fortunato Bas, Executive Director
East Bay Alliance For A Sustainable Economy
1814 Franklin Street, Suite 325
Oakland, CA 94612
nikki@workingeastbay .org
And to:
Michael R. Lozeau
Lozeau Drury LLP
410 12th Street, Suite 250
Oakland, CA 94607
Tel: [phone]
[e-mail]
If to OMSS and William Aboudi:
William Aboudi
Oakland Maritime Support Services, Inc.
2240 Wake Avenue
Oakland, CA 94607
[e-mail]
And to:
Meredith E. Brown
Bryant & Brown
476 Third Street
Oakland, CA 94607
[e-mail]
If to the City or ORSA:
Al Auletta
Program Manager
Office of Economic and Workforce Development
Office ofNeighborhood Investment
250 Frank H. Ogawa Plaza, Suite 3315
Oakland, CA 94612
[e-mail]

14

And to:
Robert P. Doty
Cox, Castle & Nicholson
555 California Street, 1oth Floor
San Francisco, CA 941 04-1513
[e-mail]
Notifications of communications shall be deemed submitted on the date that they are emailed and 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.
23.

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.
24.

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.
25.

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.
26.

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.
27.

Integration Clause. This Agreement is the full and complete statement ofthe

terms and conditions agreed to by Settling Parties, and it supersedes any and all prior oral or
written agreements covenants, representations and warranties (express or implied) concerning
the subject matter of this Agreement.

15

28.

Authority. The undersigned representatives of each Settling Party certifies that

he/she is fully authorized by the Party whom he/she represents to execute this Agreement and
bind his/her organization to the terms and conditions provided in this Agreement.
The Settling Parties hereby enter into this Agreement.
Date: _\'-o__,/_,..::.1--'\'----', 2013

Date:_ _ _ _ _, 2013

OAKLAND REDEVELOPMENT SUCCESSOR
AGENCY
By:
Title_:_ _ _ _ __

Date: _ _ _ _ _, 2013

THE CITY OF OAKLAND

By:
Title_:_ _ _ _ __

Date: _ _ _ _ _ , 2013

NORTHERN CALIFORNIA RIVER WATCH

By: _ _ _ _ _ __
Title:--------

16

28.

Authority. The undersigned representatives of each Settling Party certifies that

he/she is fully authorized by the Party whom he/she represents to execute this Agreement and
bind his/her organization to the terms and conditions provided in this Agreement.
The Settling Parties hereby enter into this Agreement.
Date: _ _ _ _ _ _ , 2013

OAKLAND MARITIME SUPPORT SERVICES, INC.
AND WILLIAM ABOUD!

By: _ _ _ _ _ __
Title: - - - - - - - Date: _ _ _ _ _ , 2013

OAKLAND REDEVELOPMENT SUCCESSOR
AGENCY

By: _________
Title: - - - - - - - - Date: _ _ _ _ _ , 2013

THE CITY OF OAKLAND

By: ___________
Title: ----------------

Date:

ID' ~ 1

, 2013

NORTHERN CALIFORNIA RIVER WATCH

16

Date:

lI

IJ

, 2013

By:
D o v ~ i l• ,L
Title: P~li(c ... l LoorJ:.,,~r
Date:._ __ _ _ , 201 3

EAST BAY ALLIANCE FOR A SUSTAINABLE
ECONOMY

By: _ _ _ _ __
Title: _ _ _ _ __ _

APPROVED AS TO FORM:
For DEFENDANTS OAKLAND MARITIME SUPPORT
SERVICES, INC. AND WILLIAM ABOUD!
Date: _ _ _ _ _, 2013

BRYANT & BROWN

By:

Meredith E. Brown, Esq.

For DEFENDANTS OAKLAND REDEVELOPMENT
SUCCESSOR AGENCY AND CITY OF OAKLAND
Date: _ _ _ _ _ , 2013

COX, CASTLE & NICHOLSON

By:

Robert P. Doty, Esq.

For PLAINTIFFS
Date: _ _ _ _ _, 2013

LOZEAU DRURY LLP

By:
062326\S49750Sv8

17

Michael R. Lozeau, Esq.

j

I

Date: _ _ _ _ _, 2013

TEAMSTERS LOCAL 70

By: - - - - -Title: - - - - - - -

-2\- \],,2013

Date:

EAST BAY ALLIANCE FOR A SUSTAINABLE
ECONOMY

APPROVED AS TO FORM:
For DEFENDANTS OAKLAND MARITIME SUPPORT
SERVICES, IN . AND WILLIAM ABOUD!
Date:

/0

-3 / ~r

5 , 2013

BRY

ayV

Meredith E.'---B _ , -Esq-.- - - - -ro_wn

For DEFENDANTS OAKLAND REDEVELOPMENT
SUCCESSOR AGENCY AND CITY OF OAKLAND
Date: _ _ _ _ _ , 2013

COX, CASTLE & NICHOLSON

By:

Robert P. Doty, Esq.

For PLAINTIFFS
Date: _ _ _ _ _ , 2013

LOZEAU DRURYLLP

By:
062326\5497S0Sv8

17

Michael R. Lozeau, Esq.

Date: _ _ _ _ _, 2013

TEAMSTERS LOCAL 70

By: _ _ _ _ __
Title: _ _ _ _ _ __
Date:_ _ _ _ _, 2013

EAST BAY ALLIANCE FOR A SUSTAINABLE
ECONOMY

By: _ _ _ _ __
Title: _ _ _ _ _ __

APPROVED AS TO FORM:
For DEFENDANTS OAKLAND MARITIME SUPPORT
SERVICES, IN . AND WILLIAM ABOUD!
Date: /0 -3J-•

5 , 2013

BRY

Byv

T&BROWN

M<redi<h E.._B-ro_wn_,
E-s-q.-----

For DEFENDANTS OAKLAND REDEVELOPMENT
SUCCESSOR AGENCY AND CITY OF OAKLAND
Date: _ _ _ _ _ , 2013

COX, CASTLE & NICHOLSON

By:

Robert P. Doty, Esq.

For PLAINTIFFS
Date: _ _ _ _ _ , 2013

LOZEAU DRURY LLP

By:
062326\5497505v8

17

Michael R. Lozeau, Esq.

Date:. _ _ _ _ _ , 2013

TEAMSTERS LOCAL 70

By: _ _ _ _ __
Title: _ _ _ _ _ __

Date:. _ _ _ _ _ , 2013

EAST BAY ALLIANCE FOR A SUSTAINABLE
ECONOMY

By: _ _ _ _ __
Title: _ _ _ _ __ _

APPROVED AS TO FORM:
For DEFENDANTS OAKLAND MARITIME SUPPORT
SERVICES, INC. AND WILLIAM ABOUDI
Date: _ _ _ _ _ ,2013

BRYANT & BROWN

By:

Meredith E. Brown, Esq.

For DEFENDANTS OAKLAND REDEVELOPMENT
SUCCESSOR AGENCY AND CITY OF OAKLAND
Date: _ _ _ __ , 2013

COX, CASTLE & NICHOLSON

By:

Robert P. Doty, Esq.

For PLAINTIFFS

Date:~,

£

, 2013

LOZEAU DRURY LLP

062326\S497S0Sv8

17

EXHIBIT A

EXHIBIT A

Phone [phone]

Phone {925) 676 47.~6
Fax ('Jl<;) 6"6 8676

OMSS - Oakland
11 Burma Rd

Prepared by Marcel Sloane, REM Inc., 3-26-2010

Sustainable Technologies

DATE:

OMSS SWPPP
11 Burma Rd. Oakland CA
Detail

2010

SCALE:

BY:

1/2” = 12’

Sustainable Technologies
www.sustech.cc

E.M.

510.523.1122

CONTAINMENT AREA
N

Total Area = 17,675 sq. ft.

1

PROPERTY LINE

STORM DRAIN

F
S

FIRE HYDRANT

Tire Storage
Tarp Roof

SAMPLING POINT

E

Roof

Eyewash Station

Storage
Container

ELECTRICAL SHUT-OFF
1“ Galv Sump Pipe
To be installed inside
asphalt berm

ALLEY

F

1000 gal
Double Wall
Used Oil Tank
400 gal Double Containment
Chevron Oil Tank

RIDGE

Sump

Oil Change Area
Roof

Storage Container

Tire Shop

FLOW DIRECTION

CTS Tires

SP

Mechanic Shop

H

E

MARITIME ST.

SPILL KIT

Oil Change Container

FIRE EXTINGUISHER

H

Sump

New Asphalt Berm

A

Oil / Water
Separator

4

A‘

To Storm Drain

1

SP
0

10

20

50

Scale (ft)

100

ALASKA ST.

MAIN DRIVEWAY

1000 Lbs
Carbon Vessel

EXHIBITB

EXHIBITB

1

2
3
4
5
6

7
8

Michael R. Lozeau (State Bar No. 142893)
RichardT. Drury (State Bar No. 163559)
Douglas J. Chermak (State Bar No. 233382)
LOZEAU DRURY LLP
410 1ih Street, Suite 250
Oakland, CA 94607
Tel: [phone]
Fax: [phone] (fax)
E-mail: [e-mail]
doug@lozeaudrury .com
Attorneys for Plaintiffs
NORTHERN CALIFORNIA RIVER WATCH,
TEAMSTERS LOCAL 70, and EAST BAY
ALLIANCE FOR A SUSTAINABLE ECONOMY

9

UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11

12
13

14

Case No.: 4: 10-cv-3912 CW-JSC

NORTHERN CALIFORNIA RIVER WATCH,
a non-profit corporation; TEAMSTERS
LOCAL 70, a labor organization; and EAST
BAY ALLIANCE FOR SUSTAINABLE
ECONOMY, a non-profit organization,

15

STIPULATION TO DISMISS
PLAINTIFF'S CLAIMS WITH
PREJUDICE; [PROPOSED] ORDER
GRANTING DISMISSAL WITH
PREJUDICE

Plaintiffs,

[FRCP 41(a)(2)]

16
V.

17
18
19
20
21
22
23
24
25
26

Hon. Chief Judge Claudia Wilken
OAKLAND MARITIME SUPPORT
SERVICES, INC., a corporation; WILLIAM
ABOUDI, an individual; JORGE GONZALEZ
RIVERA d.b.a. CHRISTIAN BROTHERS
TRUCK SERVICES, an individual;
REDEVELOPMENT AGENCY OF THE CITY
OF OAKLAND, a local public agency; and the
CITY OF OAKLAND, a municipality,
Defendants.
WHEREAS, on or about February 17, 2010, Plaintiff Northern California River Watch
("NCRW") provided Oakland Maritime Support Services, Inc. ("OMSS"), William Aboudi, and
a number of OMSS subtenants with a Notice of Violation and Intent to File Suit ("60-Day Notice

27
28

1

1

Letter") under Section 505 of the Federal Water Pollution Control Act (the "Act" or "Clean

2

Water Act"), 33 U.S.C. § 1365;

3

WHEREAS, on August 31, 2010, NCRW filed its Complaint in the United States District

4

Court for the Northern District of California against OMSS, William Aboudi, and Jorge
5

6

Gonzalez Rivera d.b.a. Christian Brothers Truck Services ("Christian Brothers") (Northern

7

California River Watch v. Oakland Maritime Support Services, Inc., et al., Case No. 4:10-cv-

8

3912 CW-JSC);

9
10
11

WHEREAS, on or about September 2, 2010, NCRW, Teamsters Local 70, and East Bay
Alliance For Sustainable Economy ("E-BASE") (collectively "Plaintiffs") provided OMSS,
William Aboudi, Christian Brothers, Redevelopment Agency of the City of Oakland, the City of

12
Oakland ("City"), the City's Community and Economic Development Agency, and others with
13
14
15
16
17
18
19

an additional Notice of Violation and Intent to File Suit under Section 505 of the Clean Water
Act;
WHEREAS, on November 2, 2010, Plaintiffs filed a First Amended Complaint adding
the Redevelopment Agency, the City, and the Community and Economic Development Agency
as defendants;
WHEREAS, on February 23, 2011, Plaintiffs voluntarily dismissed the City and the

20
21

22
23
24
25
26

Community and Economic Development Agency as defendants in the action;
WHEREAS, the Redevelopment Agency has, by operation of statute, been replaced in
this litigation by the Oakland Redevelopment Successor Agency;
WHEREAS, on October 23,2013, the Parties and the City filed a stipulation to add the
City back in as a defendant in this action;
WHEREAS, Plaintiffs and Defendants, through their authorized representatives and

27
without adjudication of Plaintiffs' claims, have chosen to resolve in full by way of settlement the
28
2

1

allegations of Plaintiffs as set forth in the Notices and First Amended Complaint, thereby

2

avoiding the costs and uncertainties of further litigation. A copy of the Settlement Agreement

3

and Release of Claims ("Settlement Agreement"), without the attached exhibits, entered into by

4

and between Plaintiffs and Defendants is attached hereto as Exhibit 1 and incorporated by
5

6

7

reference; and
WHEREAS, the parties submitted the Settlement Agreement via certified mail, return

8

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

9

set forth at 40 C.F.R. § 135.5 has been, and the Court has granted the parties' motion to approve

10
11

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

12
parties that Plaintiffs' claims, as set forth in the Notices and Complaint, be dismissed with
13
14

prejudice. The parties respectfully request an order from this Court dismissing such claims with

15

prejudice. In accordance with paragraphs 4 and 19 of the Settlement Agreement, the parties also

16

request that this Court maintain jurisdiction over the parties, for the sole purpose of resolving any

17

disputes between the parties with respect to enforcement of any provision of the Settlement

Is/ Michael R. Lozeau
MICHAEL R. LOZEAU
Attorney for Plaintiffs

Is/ Meredith E. Brown
(as authorized on _ _/2013)
MEREDITH E. BROWN
Attorney for Defendants
OAKLAND MARITIME SUPPORT
SERVICES, INC. and WILLIAM ABOUDI

3

1

2

Dated: December_, 2013

Is/ Robert Doty

3

(as authorized on _ _/2013)
ROBERT P. DOTY
Attorney for Defendant
OAKLAND REDEVELOPMENT
SUCCESSOR AGENCY and CITY OF
OAKLAND

4

5
6

7
[PROPOSED] ORDER
8
9
10

Good cause appearing, and the parties having stipulated and agreed,
IT IS HEREBY ORDERED that Plaintiffs Northern California River Watch's, Teamsters

11

Local 70's, and East Bay Alliance For Sustainable Economy's claims against Defendants

12

Oakland Maritime Support Services, Inc., William Aboudi, Jorge Gonzalez Rivera d.b.a.

13
14

Christian Brothers Truck Services, Oakland Redevelopment Successor Agency, and the City of
Oakland, as set forth in the Notices and First Amended Complaint filed in Case No.4: 10-cv-

15
3912 CW-JSC, are hereby dismissed with prejudice.
16
17

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

18

the sole purpose of enforcing compliance by the parties of the terms of the Settlement

19

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

20

PURSUANT TO STIPULATION, IT IS SO ORDERED.

21

Hon. Claudia Wilken
United States District Chief Judge

4

EXHIBIT C 

Sustainable Technologies
OMSS SWPPP
11 Burma Rd. Oakland CA
Detail

DATE:

SCALE:

BY:

2010

1/2” = 12’

Sustainable Technologies
www.sustech.cc

E.M.

510.523.1122

Project Description: OMSS truck Repair area Stormwater Collection and containment Berm

This project is the first phase of the OMSS’ truck repair
area storm water collection and treatment structure.
This project consists in the installation of two 24”x 24” 24”
traffic rated sumps connected by a 6” sloping pipe.
A containment berm; as shown in the attached drawing
will be installed to prevent any liquids to leave the area.
The water from second sump will be pump using a
diagram pump. The storm water will be piped to the
treatment area in an underground 1” PVC sch40 pipe.
An Oil water separator and carbon filter will be placed
in treatment area to treat the storm water before discharging
it to the storm drain.

INSET A

CROSS VIEW A-A’

GRADE
DISCHARGE FLOWS

SUMP #1
SUMP #2

T r i t o n F i l t e R™
Product

Specification

catch basin filter insert

The Triton Filter
• Non-reactive High Density Polyethylene (HDPE) plastic construction, with U.V. inhibitors.
• Round, Square, Rectangular, Low
Profile and Custom models.
• Dual Stage and Dual Capacity
Filters are also available.

• Quick and easy servicing made
available by replaceable Media-Paks.
• Filter Media-Pak available for the
removal of hydrocarbons, metals,
sand, silt, and litter.

• Disposable Filter Media-Pak is
constructed from durable geotextile,
polyproplene fabric.

Model TR24SR

• Media-Pak can be interchanged
with Geo-Trap series as site conditions change.

TRITON CATCH BASIN FILTER INSERT

• Patented design with high nominal
flow and high overflow capacities.

The TRITON is designed to be inserted below the grate of storm
drain inlets.

• Media is nonhazardous, per EPA
and OSHA standards.

• Easy to install in new and existing
catch basins.
• Meets Best Available Technology
(BAT) for use in Stormwater Best
Management Practices (BMP).

• Maintenance contracts, including
recycling of all spent absorbents are
available.

• Servicing of filters on a regular basis
is a requirement to meet most local
and state BMP’s.

REM has developed the TRITON Catch Basin Insert to help
eliminate hydrocarbons and other contaminants such as metals, sand,
silt and litter from stormwater runoff.

Patent No. 6,217,757

ReM - Helping Keep your waterways clean
The most recent National Water Quality Inventory reports that runoff from urban
areas is the leading source of impairments to surveyed estuaries and the third largest
source of water quality impairments to surveyed lakes. In addition, population and
development trends indicate that by 2010 more than half of the Nation will live
in coastal towns and cities. Runoff from these rapidly growing urban areas will
continue to degrade coastal waters.1
1Environmental

Protection Agency's Office of Water EPA841–F–96–004G

Revel Environmental Manufacturing, Inc.
www.remfilters.com
888-526-4736

TRITON FILTER™ Catch Basin Insert
B
D

A

E

CA

Triton Media Cartridge

F
Dimensional SPecificationS

Standard Dimensions (in Inches)

1.
2.

3.

4.
5.

6.
7.

All dimensions are in inches.

Units are constructed from High

Density Polyethylene Plastic with
U.V. inhibitors.

Media Cartridges can be inter-

changed with Geo-Trap series as
site conditions change.

Low profile filters are also available
for shallow catch basins.

Custom sizes are available to fit
most applications. Please call a

distributor near you for details.
Optional TDG series Trash &
Debris Guard also available.

Dual stage and dual capacity filters
also available.

B*

C

D

E

F

G* cartridges

TR1212

NOTES:

A*
13

13

11

11

6.75

3.75

5.5

1

TR1212RD 13 Dia.

11 Dia.

6.75

3.75

5.5

1

TR1616

18

18

14

14

6.75

3.75

10.5

1

TR1818

20

20

17

17

10.5

7.25

10.5

1

TR18RD

20 Dia.

16.5 Dia.

6.75

3.75

10.5

1

TR1824

19

25

17

17

10.5

7.25

10.5

1

TR2024

21

25

17

17

10.5

7.25

10.5

1

TR24sr

26

26

21

21

14

11

13

1

TR24RD

26 Dia.

21 Dia.

14

11

13

1

TR2436

26

38

17

30

10.5

7.25

10.5

2

TR3030

33

33

21

21

14

11

13

1

TR36sr

40

40

33

33

14

11

22 1 TALL

TR36RD

40 Dia.

30 Dia.

14

11

22 1 TALL

TR2448

26

52

21

42

14

11

13

TR4848

52

52

42

42

24

20

22 1 TALL

2

* Note: Dimension "G" is filter depth.
Dimensions "A" and "B" can be adjusted to suit varying sizes of catch basins.

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