Resolution No. 6697
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RESOLUTION NO. 6697
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION
OF A SETTLEMENT AGREEMENT RELATING TO LOS
ANGELES SUPERIOR COURT CASE NO. BC 104302 .BY AND
BETWEEN THE CITY OF RIVERSIDE AND THE CITY OF
VERNON
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WHEREAS, on May 6, 1994, the cities of Anaheim, Colton,
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Riverside, Azusa and Banning filed an action against the City of
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Vernon in the Los Angeles superior Court, Case No. BC 104302,
alleging a right to reimbursement on certain contracts concerning
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the California-Oregon Transmission Project; and
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WHEREAS, the City of Vernon has been negotiating with the
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individual cities in an attempt to compromise each of their
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respective claims in the litigation; and
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WHEREAS, the City of Vernon and the City of Riverside
wish to enter into a full settlement of each of their respective
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claims in the above-referenced litigation; and
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WHEREAS, said settlement is not an admission or a
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determination by the City of Vernon as to the merits of any claims
or allegations raised by the City in said litigation.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the city of Vernon does
hereby find and determine that the recitals contained hereinabove
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are true and correct.
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SECTION 2: The City Council of the city of Vernon hereby
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approves the Settlement Agreement by and between the city of
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Riverside and the City of Vernon, the original Agreement has been
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1 presented to the City Council concurrently with this resolution,
2 and the City Council hereby orders said Agreement to be received
3 and filed by the City Clerk.
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SECTION 3: The City Council of the City of Vernon hereby
5 authorizes the Mayor and the City Clerk to execute said Agreement
6 for, and on behalf of, the City of Vernon.
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SECTION 4: The city Clerk of the City of Vernon shall
8 certify to the passage of this resolution and thereupon and
9 thereafter the same shall be in full force and effect.
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APPROVED AND ADOPTED this 7th day of November, 1995.
~-u:~/t!.~~~/ ·
/"eONIS C. MALB~G-, May~ .
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14 BRUCE V. MALKENHORST,
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STATE OF CALIFORNIA )
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COUNTY OF LOS ANGELES )
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I, BRUCE V. MALKENHORST, City Clerk of the City of
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Vernon, do hereby certify that the foregoing Resolution, being
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Resolution No. 6697, was duly adopted by the city Council of the
City of Vernon at a regular meeting of the City Council duly held
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on Tuesday, November 7, 1995, and thereafter was duly signed by
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the Mayor of the City of Vernon.
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BRUCE V. MALKENHORST,
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SUPPORTING
DOCUMENTS
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EXECUTION COPY
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SETTLEMENT AGREEMENT BETWEEN
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THE CITY OF RIVERSIDE
AND
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THE CITY OF VERNON
RELATING TO
LOS ANGELES SUPERIOR COURT
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CASE NO. BC 104302
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V ~ \ P \ L-/'-I- ( I LfS
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TABLE OF CONTENTS
PARTIES
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RECITALS
TERM OF AGREEMENT
AGREEMElfT ...........
4.1 lfen-firm Transmission Service
4.2 Dismissal ef Action . . . . . . .
BILLIlfG AND PAYMENT
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AUTHORIZED REPRESElfTATIVES
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LIABILITY AND INDEMNITY
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Paqe
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NONPRECEDENT AND RESERVATION OF RIGHTS . . . . . . 10
8.1 lfonprecedent .................. 10
8.2 lfon-Admission Bv Vernon . . . . . . . . . . . .. 10
8.3 lfon-Opposition to Other Settlement Aqreements 10
PREVIOUS COMMUNICATIONS
lfONSEVERABILITY
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NONWAIVER OF CONTRACTUAL RIGHTS
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UNCONTROLLABLE FORCE . . . . .
lfONDEDICATION OF FACILITIES
lfOTICES
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RELATIONSHIP OF PARTIES
lfO THIRD PARTY RIGHTS
ASSIGNMENT . . . . . .
GOVERNING LAW AND REGULATIONS
COlfSTRUCTIOlf OF AGREEMENT
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CAPTIONS AND HEADINGS
SIGNATURE CLAUSE . . . .
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SETTLEMENT AGREEMENT
BETWEEN
THE CITY OF RIVERSIDE
AND
THE CITY OF VERNON
RELATING TO
LOS ANGELES SUPERIOR COURT CASE NO. BC 104302
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1.0 PARTIES
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The parties to this settlement agreement ("Agreement") are
the City of Riverside, a municipal corporation of the state of
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California ("Riverside"), and the City of Vernon, a municipal
corporation of the state of California ("Vernon").
is a Party and collectively are the Parties.
Each signatory
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2.0 RECITALS
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This Agreement is made with reference to the following facts,
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among others:
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2.1 The Parties are engaged in the generation, transmission,
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and/or distribution of electric power and energy in the
southwestern United states.
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2.2 Vernon has the right to use and sell transmission
capacity on the Pacific DC intertie between Nevada-Oregon border
and Sylmar Substation and between Midway Substation and Sylmar
Substation ("Transmission Paths").
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2.3 The cities of Anaheim, Riverside, Colton, Azusa and
Banning filed an action in the Superior Court of the State of
California, County of Los Angeles, Case No. BC 104302, ("the
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Action"), on May 6, 1994, alleging a right to reimbursement on
certain contracts pertaining to the California-oregon Transmission
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Project.
Vernon denies the existence of such a right.
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2.4 In order to limit the time and expense of lengthy and
2 complex litigation, Vernon has been negotiating with the
3 plaintiffs in the Action collectively and individually, an~ ,
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4 Riverside is willing to individually compromise its claims in the
5 Action as set forth herein and to file a dismissal in the Action
6 with prejudice as to Riverside.
7 2.5 This Agreement is entered into by the Parties in good
8 faith and in full settlement of each such respective claim in the
9 Action and with the stipulation that this Agreement is not a
10 determination or admission as to the merits of any claims or
11 allegations set forth in the Action and shall not be admitted in
12 evidence in any proceeding other than to prove the terms and
13 conditions of this Agreement.
14 3.0 TERN OF AGREEMENT
15 This Agreement shall become effective on the date last herein
16 mentioned when signed by the Parties hereto and shall remain in
17 effect until completion of performance, including paYment of all
18 bills for service, or shall terminate in any event on July 1,
19 1999, and the Parties' rights shall expire on said termination
20 date.'
21 4.0 AGREEMENT
22 In consideration of the mutual covenants contained herein,
23 the Parties agree as stated herein.
24 4.1 Non-firm Transmission Service. Vernon hereby grants to
25 Riverside the right to schedule up to fifteen megawatts (15 MW) of
26 non-firm transmission service on each Transmission Path at any
27 time during the period May 1, 1996 through April 30, 1999. The
28 first 4,500 MWh of such transmission service scheduled and used by
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1 Riverside on each path for each month during said period shall be
2 provided at no charge except that Riverside shall be responsible
3 for all losses and costs provided for in section 4.1.6. Riverside
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4 shall pay Vernon for transmission service scheduled and used by
5 Riverside above 4,500 MWh during each month as follows:
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NOB-Sylmar
$1. 50/MWh
$0.75/MWh
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Midway-Sylmar
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4.1.1
Riverside shall submit its hourly preschedule
9 (not to exceed 15 MWh per hour on each path) to Vernon by 1030
10 hours. Preschedules shall be completed on each workday ("Workday"
11 means each day which Riverside and Vernon both observe as a
12 regular day of work). Preschedules shall be for each hour of the
13 following day or days through the next Workday. The Parties shall
14 endeavor to avoid requesting changes in schedules. Requests for
15 changes in prescheduled amounts by Riverside for any hour shall be
16 only as mutually agreed. Normally such requested changes shall be
17 submitted no later than 30 minutes before the hour for which the
18 change is to be effective.
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4.1.2
Vernon's first 60MW of capacity and firm energy
20 sChedbles using Vernon's rights to transmission service on the
21 Pacific DC Intertie and on the Midway-Sylmar path shall have
22 priority over any non-firm transmission service scheduled or
23 unscheduled by Riverside pursuant to this Agreement.
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4.1.3
Subject to the provisions of section 4.1.4,
25 transmission service may be interrupted during the next scheduled
26 hour by Vernon or immediately interrupted if Vernon receives
27 notification, or is interrupted without notification, for a system
28 emergency or an unscheduled reduction in Vernon's transmission
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1 capability on the affected transmission path.
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4.1.4
Riverside, other third parties who have
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purchased non-firm transmission service from Vernon through~
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settlement agreements in the Action, and Vernon, shall have
priority service over other non-firm preschedules and schedules
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and shall share such capacity on a pro rata basis except as
provided in section 4.1.2 above.
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4.1.S
If preschedules cannot be established as
9 requested by Riverside because of Vernon's lack of transmission
10 capacity or if Riverside's existing schedule is reduced during
11 real time, then by the next workday Riverside may request Vernon
12 to pay, and Vernon shall pay Riverside fifty cents per megawatt
13 hour ($0. SO/KWh) for the amount of transmission service not made
14 available on a prescheduled basis or curtailed by Vernon's
15 dispatchers if such service would have been necessary to schedule
16 any portion of the 4,500 KWh on each path for each month. If
17 Riverside requests the payment of fifty cents per megawatt hour
18 ($O.SO/KWh) for such service, then Vernon's obligation to provide
19 such non-firm transmission service at no charge pursuant to
20 section 4.1 in such month, shall be reduced by a like amount.
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4.1.6
Riverside shall be responsible for transmission
22 losses associated with its schedule of such service and shall
23 reimburse Vernon for any other charges Vernon incurs which are
24 directly related to its schedule of such service (e.g., Edison
25 dispatching and scheduling fees). Riverside shall either (i)
26 return energy to Vernon at the Sylmar Substation pursuant to
27 Edison's standard procedures for payment for transmission losses,
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mutually acceptable rate in lieu of scheduling such energy to
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Vernon, or (iii) upon securing Vernon and Edison's approval,
deliver energy directly to Edison as payment for losses.
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4.1.7
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The parties recognize that the transmission
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service provided by Vernon under this Agreement may be interrupted
or curtailed by Vernon in accordance with the provisions of
7 sections 4.1.2-4.1.5. Such an interruption shall not be
8 considered a willful Action as defined in section 7, if it is
9 implemented in accordance with this section 4.
10 4.2 Dismissal of Action. Riverside shall within sixty (60)
11 days after execution of this Agreement file a dismissal with
12 prejudice of the Action as to Riverside. Upon failure to file a
13 dismissal, Riverside stipulates that Vernon may file this
14 Agreement with the Court as a stipulation for dismissal with
15 prejudice of the Action.
16 5.0 BILLING AND PAYMENT
17 5.1 Billing and payment with respect to Non-Firm
18 Transmission Service hereunder shall be based upon the following:
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5.1.1
Vernon shall bill Riverside for the amount of
20 Non-Firm Transmission Service scheduled and used pursuant to
21 Section 4.1 above and all other charges associated with'such
22 service provided for in this Agreement.
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5.1.2
Vernon shall credit Riverside as requested
24 pursuant to 4.1.5 above.
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5.1.3
Billing shall be based on the records of the
26 respective power schedulers or dispatchers in the form directed by
27 the Authorized Representatives, except as the Authorized
28 Representatives may arrange otherwise for particular situations.
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5.2 A bill for Non-Firm Transmission Service provided under
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this Agreement shall be rendered monthly by Vernon on or before
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the 20th of the month following the month in which such
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Bills received shall be due by
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Transmission Service is received.
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the fifteenth (15) calendar day from the date of such receipt.
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Amounts not paid on or before the due date shall be payable with
interest at the rate of one percent (1%) per month from the due
date to date of paYment.
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9 5.3 In case a bill or any portion thereof is in dispute, the
10 full amount shall be paid when due. If the disputed amount is
11 determined to be incorrect, such amount shall be refunded promptly
12 upon determination, with interest accrued at the rate of one
13 percent (1%) per month computed from the original due. date to the
14 date the adjustment is made.
15 5.4 Notices and demands shall be addressed to the respective
16 Parties as set forth in section 14.0.
17 6.0 AUTHORIZED REPRESENTATIVES
18 6.1 Each Party shall designate an Authorized Representative.
19 Such Authorized Representative shall be authorized to act on
20 behalf of such Party in carrying out the provisionS of this
21 Agreement and to provide liaison between the Parties. Each Party
22 shall notify each other Party within thirty (30) calendar days
23 after execution of this Agreement of the designation of its
24 Authorized Representative and shall promptly notify each other
25 Party of any subsequent changes in such designation.
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26 6.2 The Authorized Representatives shall have no authority
27 to modify any of the provisions of this Agreement unless
28 specifically set forth herein.
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1 6.3 Disputes on any matter relating to this Agreement shall
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be discussed and resolved by the Authorized Representatives, who
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shall use their best efforts to amicably and promptly resolve the
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dispute. If the Authorized Representatives are unable to resolve
the dispute, the matter shall be referred to the chief executive
officers of each Party's utility department for resolution.
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7 7.0 LIABILITY AND INDEMNITY
8 7.1 Except for willful Action, each Party shall indemnify
9 and save each other Party harmless from liability, loss, damage,
10 claim, costs, and expenses (including attorney fees) on account of
11 injury to persons (including death), or damage or destruction of
12 property, occasioned by the sole negligence, whether active or
13 passive, of the indemnifying Party's officers, directors,
14 employees, or contractors; provided, however, that:
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7.1.1
Each Party shall be solely responsible for the
16 claims or any payments to any employee or agent for injuries
17 occurring in connection with their employment or arising out of
18 any Workers' Compensation law.
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7.1.2
No Party shall be liable for any loss of
20 earnings, revenues, indirect or consequential damages, or injury
21 which may occur to the other as a result of outages in delivery of
22 energy or service hereunder by reason of any cause, including
23 negligence, but excluding willful Action.
24 7.2 Each Party shall indemnify and save each other Party
25 harmless for any liability, loss, claim, cost (including attorney
26 fees) for any claims made by the indemnifying Party's electric
27 service customers as a result of any failure of a Party to provide
28 electric power or energy contemplated by this Agreement for any
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1 reason or any cause, including the negligence of each other Party,
2 but excluding Willful Action.
3 7.3 For the purpose of this section 7, willful Action~s~all
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4 be defined, except as otherwise provided in section 4.1.7 hereof,
5 as follows:
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7.3.1
Action taken or not taken by a Party at the
7 direction of its directors or members of its governing bodies,
8 officers, or employees having management responsibility affecting
9 its performance under this Agreement, as follows:
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7.3.1.1
Action which is knowingly or
11 intentionally taken or not taken with conscious indifference to
12 the consequences thereof or with intent that injury or damage
13 would result or is likely to result therefrom.
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7.3.1.2
Action which has been determined by final
15 arbitration award or final judgment or judicial decree to be a
16 material default under this Agreement and which occurs or
17 continues beyond the time specified in such arbitration award or
18 judgment or judicial decree for curing such default or, if no time
19 to cure is specified therein, occurs or continues thereafter
20 beyond a reasonable time to cure such default.
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7.3.1.3
Action which is knowingly or
22 intentionally taken or not taken with the knowledge that such
23 action taken or not taken is a material default under this
24 Agreement.
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7.3.2
Willful Action does not include any act or
26 failure to act which is merely involuntary, accidental, or
27 negligent.
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7.3.3
The phrase "employees having management
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1 -responsibility", as used in this section 7.3, means the employees
2 of a Party who are responsible for one or more of the executive
3 functions of planning, organizing, coordinating, directing~~ i
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4 controlling, and supervising such Party's performance under this
5 Agreement with responsibility for results.
6 7.4 The provisions of this section 7 shall be binding upon
7 the Parties to the full extent permitted by law.
8 8.0 NONPRECEDENT AND RESERVATION OF RIGHTS
9 8.1 Nonprecedent. None of the principles or the
10 methodologies underlying this Agreement shall be deemed by any
11 Party as binding precedent in any proceeding or litigation except
12 to the extent specifically stated herein.
13 8.2 Non-Admission By Vernon. By its execution of this
14 Agreement, Vernon does not admit to and hereby denies any
15 allegations relating to any of the activities raised by the
16 Plaintiffs in the Action.
17 8.3 Non-Opposition to Other Settlement Aqreements.
18 Riverside agrees not to oppose or otherwise challenge any
19 settlement agreement between Vernon and any other party to the
20 Action.
21 9.0
PREVIOUS COMMUNICATIONS
22 This Agreement contains the entire agreement and
23 understanding between the Parties as to the subject matter herein,
24 and supersedes all prior agreements, commitments, representations,
25 and discussions between the Parties.
26 10.0 NONSEVERABILITY
27 This Agreement is sUbject to each and every condition set
28 forth herein, and each term of this Agreement is in consideration
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1 and support of every other term.
2 11.0 NONWAIVER OF CONTRACTUAL RIGHTS
3 The failure of any Party to insist promptly in anyone pr
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4 more instances upon strict performance of any provision of this
5 Agreement, or to enforce any of its rights, shall not be construeg
6 as a waiver of any such provision or the relinquishment of any
7 such rights.
8 12.0 UNCONTROLLABLE FORCE
9 No Party shall be considered to be in default in the
10 performance of any of its obligations hereunder other than the
11 obligation of a Party to make paYment, when a failure of
12 performance shall be due to an uncontrollable force. The term
13 "uncontrollable force" shall mean any cause beyond the control of
14 the Party unable to perform such obligation, including,but not
15 limited to, failure of or threat of failure of facilities, flood,
16 earthquake, storm, fire, lightning, and other natural
17 catastrophes; epidemic, war, riot, civil disturbance or
18 disobedience, strike, labor dispute, labor or material shortage,
19 sabotage, government priorities, and restraint by court order or
20 pUblic authority, and action or nonaction by or failure to obtain
21 the necessary authorizations or approvals from any governmental
22 agency or authority, which by exercise of due diligence such Party
23 could not reasonably have been expected to avoid and which by
24 exercise due diligence it shall be unable to overcome. Nothing
25 contained herein shall be construed as to require a Party to
26 settle any strike or labor dispute in which it may be involved.
27 13.0 NONDEDICATION OF FACILITIES
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No undertaking by one Party to another under any provision
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1 of this Agreement shall constitute the dedication of the electric
2 system or any portion thereof of such Party to the public or to
3 the other Party, and it is understood and agreed that any sucp
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~ undertaking by any Party shall cease upon the termination by such
5 Party of its obligations hereunder.
6 14.0 NOTICES
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14.1 Any formal notice, demand or request provided for in
8 this Agreement, or served, given or made in this Agreement, or
9 served, given or made in connection with it, shall be in writing
10 and shall be deemed properly served, given or made if delivered in
11 person or sent by united states mail, postage prepaid, to the
12 person specified below:
13 To Riverside: Attention: Public utilities Director
3900 Main street
14 Riverside, CA 92522
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To Vernon:
Attention: Chief Executive Officer of Light
and Power
Light and Power Department
4305 Santa Fe Avenue
Vernon, CA 90058-0805
14.2 Either Party may at any time and from time to time, by
19 notice to each other Party, change the designation or address of
20 the person so specified as the one to receive notices pursuant to
21 this Agreement.
22 15.0 RELATIONSHIP OF PARTIES
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The covenants, obligations and liabilities of the Parties
24 are intended to be several and not joint or collective. Nothing
25 contained in the Agreement shall be construed to create an
26 association, joint venture, trust, agency, or partnership. Each
27 Party shall be individually responsible for its own covenants,
28 obligations and liabilities as provided in this Agreement. No
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1 Party shall be under the control of or shall be deemed to control
2 another Party. No Party shall be the agent of or have a right or
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power to bind another Party without such other Party's exp~sp
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written consent.
5 16.0 NO THIRD PARTY RIGHTS
6 The Parties do not intend to create rights in, or to grant
7 remedies to, any third party as a beneficiary of this Agreement or
8 of any duty, covenant, obligation or undertaking established
9 herein.
10 17.0 ASSIGNMENT
11 No Party shall assign or otherwise transfer this Agreement,
12 or its right or interest or any part thereof to any third party,
13 without the prior written consent of each other Party except as
14 set forth herein. Such consent shall not be unreasonably
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withheld.
No assignment of this Agreement shall relieve the
16 assigning party of its obligations until such obligations have
17 been assumed in writing by the assignee.
18 18.0 GOVERNING LAW AND REGULATIONS
19 This Agreement shall be interpreted, governed, and construed
20 under the laws of the State of California as if to be performed
21 wholly within the State of California.
22 19.0 CONSTRUCTION OF AGREEMENT
23 Ambiguities or uncertainties in the wording of this
24 Agreement shall not be construed for or against the Parties, but
25 shall be construed in a manner that most accurately reflects the
26 intent of the Parties, as expressed when this Agreement was
27 executed and as is consistent with the nature of the rights and
28 obligations of the Parties with respect to the matter being
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1 construed.
2 20.0 CAPTIONS AND HEADINGS
3 All captions and headings appearing in this Agreemene qre
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4 inserted to facilitate reference and shall not govern the
5 interpretations hereof.
6 21.0 SIGNATURB CLAUSE
7 The signatories hereto represent that they have been
8 appropriately authorized to enter into this "Settlement Agreement
9 Between the City of Riverside and the City of Vernon, Relating to
10 Superior Court Case No. BC 104302" on behalf of the Party for
11 which each signs. This Agreement is entered into on this 11th
12 day of December
1995.
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CITY OF RIVERSIDE
BY: ~<Yl)E .~11.J
TITLE: ~- City Manager
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ATTEST: ~ '
BY:_~ & ~J
TITLE: City Clerk
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APPR~ASTOt!.?:/. ..
BY:' J lA/~
TITLE:~~
Seal:
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CITY OF VERNON
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BY: ~~~~~
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TITLE: / Mayor f ,
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ATTEST:
BY: /?~ c// ~?~:C--~
BRUCE V. MALKENHORST
TITLE: city Clerk
8 APPROVED AS TO FORM:
9 BY: \:)ot-i-j) V>,V?~~<
DAVID B. BREARL Y
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TITLE: city Attorney
Seal:
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