Resolution No. 6826
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8 Vernon
RESOLUTION NO. 6826
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION
OF A SETTLEMENT AGREEMENT IN THE LITIGATION
ENTITLED CITY OF SOUTH GATE. ET AL. VS. CITY OF
LOS ANGELES. ET AL., LASC NO. BC 129447, COURT
OF APPEAL NO. 2ND CIV NO. B100019
WHEREAS, the cities of Compton, Lynwood, South Gate and
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and the Association for the Mitigation of Transportation
Impacts composed of the above-referenced four cities and taxpayers
Anita o. Aviles and Edward Saenz filed a complaint in the Los
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Angeles Superior Court against the City of Los Angeles, Port of
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Los Angeles, Board of Harbor Commissioners of the city of Los
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Angeles, City of Long Beach, Port of Long Beach, Board of Harbor
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Commissioners of the City of Long Beach raising, among other
issues, the validity of the Third Amendment to the Joint Powers
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Agreement between Los Angeles and Long Beach, which established
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the Alameda Corridor Transportation Authority; and
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WHEREAS, the litigation is presently pending in the Court
of Appeal; and
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WHEREAS, the cities of Compton, Lynwood, South Gate,
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Vernon, the Association, the City of Huntington Park, a city not a
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party to the litigation, and the Southeast cities Transportation
Authority (t1SECTAtI), an agency not a party to the litigation, wish
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to make an offer of settlement to the defendants in this matter
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which, if accepted, will completely settle this litigation; and
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WHEREAS, the City of Huntington Park and SECTA are
parties to this Settlement Agreement in order to fully implement
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the settlement as proposed.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
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CITY OF VERNON AS FOLLOWS:
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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
approves the Settlement Agreement in the litigation entitled City
of South Gate. et al. vs. city of Los Anqeles. et al.. LASC No. BC
129447, a copy of which has been presented to the city Council
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concurrently with this resolution, and the City Council hereby
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approves making a formal offer of such settlement to the
defendants in the litigation where such offer of settlement will
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expire on August 22, 1996.
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SECTION 3: Upon receiving notification that all parties
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to the Settlement Agreement have approved the Agreement, the Mayor
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is authorized to execute the Agreement in twelve (12)
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counterparts, and the city Attorney is authorized to file said
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Agreement in court requesting the court to approve the settlement
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and upon said court approval to fully implement the Settlement
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Agreement pursuant to its terms.
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SECTION 4: The City Clerk of the City of Vernon shall
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certify to the passage of this resolution and thereupon and
thereafter the same shall be in full force and effect.
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APPROVED AND ADOPTED this 30th day of July, 1996.
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/~. EONIS C. MAL RG, May-r
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AT~:
BRUCE V.
MALKENHORST, City Clerk
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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
Resolution No. 6826, was duly adopted by the City Council of the
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City of Vernon at an adjourned regular meeting of the City Council
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duly held on Tuesday, Julv 30. 1996, and thereafter was duly
signed by the Mayor of the City of Vernon.
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BRUCE V. MALKENHORST, city Clerk
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(SEAL)
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1 RESOLUTION NO. 6826
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3 ~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
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VERNON APPROVING AND AUTHORIZING THE EXECUTION
4 OF A SETTLEMENT AGREEMENT IN THE LITIGATION
ENTITLED CITY F SOUTH GATE ET AL. VS. CITY OF
5 LOS ANGELESt AL., LASC NO. BC 129447, COURT
OF APPEAL N~ 2 D~CIV NO. B100019
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:`R~ e ities of Com ton L nwood South Gate and
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Vernon and the Association for the Mitigation of Transportation
9 Impacts composed of the above-referenced four cities and taxpayers
10 Anita O. Aviles and Edward Saenz filed a complaint in the Los
11 Angeles Superior Court against the City of Los Angeles, Port of
12 Los Angeles, Board of Harbor Commissioners of the City of Los
13 Angeles, City of Long Beach,"~ Port of Long Beach, Board of Harbor.
14 Commissioners of the City of Long Beach raising, among other
15 issues,-the validity of the Third Amendment to the Joint Powers
16 Agreement between Los Angeles and Long Beach, which established
17 the Alameda Corridor Transportation Authority; and
18 WHEREAS, the litigation is presently pet`fding in the Court
19 of Appeal; and
20 WHEREAS, the Cities of Compton, Lynwood, South Gate,
21 Vernon, the Association, the City of Huntington Park, a city not a
22 party to the litigation, and the Southeast Cities Transportation
23 Authority ("SECTA"), an agency not a party to the litigation, wish
24 to make an offer of settlement to the defendants in this matter
25 which, if accepted, will completely settle this litigation; and
26 WHEREAS, the City of Huntington Park and SECTA are
27 parties to this Settlement Agreement in order to fully implement.
28 the settlement as proposed.
1 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
2 CITY OF VERNON AS FOLLOWS:
3 SECTION l: The City Council of the City of Vernon does
4 hereby find and determine that the recitals contained hereinabove
5 are true and correct.
6 SECTION 2: The City Council of the City of Vernon hereby
7 approves the Settlement Agreement in the litigation entitled Citv
8 of South Gate, et al. vs. City of Los Angeles, et al., LASC No BC
9 129447, a copy of which has been presented to the City Council
10 concurrently with this resolution, and the City Council hereby
11 approves making a formal offer of such settlement to the
12 defendants in-the litigation where such offer of settlement will
13 expire on August 22, 1996.
14 SECTION 3: Upon receiving notification that all parties
15 to the Settlement Agreement have approved the Agreement, the Mayor
16 is authorized to execute the Agreement in twelve (12)
17 counterparts, and the City Attorney is authorized to file said
18 Agreement in court requesting the court to approve the settlement
19 and upon said court approval to fully implement the Settlement
20 Agreement pursuant to its terms.
21 SECTION 4: The City Clerk of the City of Vernon shall
22 certify to the passage of this resolution and thereupon and
23 thereafter the same shall be in full force and effect.
24 APPROVED AND ADOPTED this 30th day of July, 1996.
25 s/Leonis C. Malburg
LEONIS C. M~LBURG, Mayor
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ATTEST:
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s/Bruce V. Malkenhorst
28 BRUCE V. MALKENHORST, City Clerk
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1 STATE OF CALIFORNIA )
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COUNTY OF LOS ANGELES )
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4 I, BRUCE V. MALKENHORST, City Clerk of the City of
Vernon, do hereby certify that the foregoing Resolution, being
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6 Resolution No. 6826, was duly adopted by the City Council of the
City of Vernon at an adjourned regular meeting of the City Council
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duly held on Tuesday, July 30, 1996, and thereafter was duly
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signed by the Mayor of the City of Vernon.
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10 s/Bruce V. Maikenhorst
11 BRUCE V. MALKENHORST, City Clerk
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1 ' EXECUTION COPY
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9 SETTLEMENT AGREEMENT AMONG THE CITY OF LONG BEACH,
10 THE BOARD OF HARBOR COMMISSIONERS OF THE CITY
11 OF LONG BEACH, THE CITY OF LOS ANGELES, THE
12 BOARD OF HARBOR COMMISSIONERS OF THE CITY OF LOS ANGELES,
13 THE CITIES OF COMPTON, HUNTINGTON PARR,
14 LYNWOOD, SOUTH GATE, AND VERNON,
15 THE ASSOCIATION FOR THE MITIGATION OF
16 TRANSPORTATION IMPACTS,
17 THE ALAMEDA CORRIDOR TRANSPORTATION AUTHORITY,
18 AND THE SOUTHEAST CITIES TRANSPORTATION AUTHORITY
19 RELATING TO THE CONSTRUCTION OF THE
20 ALAMEDA CORRIDOR TRANSPORTATION PROJECT AND
21 THE SETTLEMENT OF ISSUES RAISED IN
22 LOS ANGELES SUPERIOR COURT CASE NO. BC 129447
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1 TABLE OF CONTENTS
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PAGE
3 1. PARTIES 1
4 2. RECITALS
. 1
2 . 1 ACTA 1
5 2.2 ACTA
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2.3 SECTA 2
6 2.4 The LB Harbor 2
2.5 The LA Harbor 2
7 2.6 Joint Powers Agreement . . . . , . 3
2.7 ACTA Governing Board 3
8 2.8 LB, and LA, LB Harbor and LA Harbor 3
2.9 Compton 3
9 2.10 HP
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2.11 Lynwood 4
10 2.12 SG
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2.13 Vernon 4
11 2.14 Compton, HP, Lynwood, SG•and.Vernon 4
2.15 Compton, Lynwood, SG, Vernon 4
12 2.16 The Ports and ACTA 5
2.17 Compton, Lynwood, SG, Vernon, Assoc., LB Board, LB
13 Harbor, LA Board, LA Harbor and ACTA 5
2.18 Settlement Negotiations 5
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3. DEFINITIONS 5
15 3.1 SECTA Construction Claims Technical Committee 5
3.2 Fourth Amendment 5
3.4 EIS 6
17 3.5 Job Training 6
3.6 MOU 6
18 3.7 ROD 6
3.8. Association 6
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4. AGREEMENT 7
20 4.1 The Cities agree 7
4.2 The Ports agree 10
21 4.3 ACTA agrees 15
4.4 SECTA agrees 16
22 4.5 Allocation of. Funds 17
23 5. PROHIBITION AGAINST LITIGATION 17
24 6. TERM OF AGREEMENT 18
25 7. NONPRECEDENT AND RESERVATION OF RIGHTS 18
7.1 Nonprecedent 18
26 7.2 Extent Settlement Agreement Constitutes Waiver of
Rights 19
27 7.3 Non-Admission by Defendants 20
28 8. PREVIOUS COMMUNICATIONS 20
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1 9. NONSEVERABILITY 20
2 10. NONWAIVER OF CONTRACTUAL RIGHTS 20
3 11. NOTICES 21
4 12. RELATIONSHIP OF PARTLES 22
5 13. NO THIRD .PARTY RIGHTS 23
6 14. ASSIGNMENT 23
~ 15. GOVERNING LAW AND REGULATIONS . . . . . . . . . 23
8 16. CONSTRUCTION OF AGREEMENT 23
9 17. CAPTIONS AND HEADINGS 24
10 18. SIGNATURE CLAUSE . 24
11 19. NUMBER OF ORIGINALS 24
12 20. TERMINATION . 25
13 21. GENERAL CONDITIONS 2 6
14 EXHIBIT oAn A - 1
15 EXHIBIT nBn B - 1
16 EXHIBIT ~~C~~ C - 1
17 EXHIBIT "D" D - 1
18 EXHIBIT nEn E - 1
19 EXHIBIT nFn F - 1
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(ii)
1 1. PARTIES
2 The parties to this Settlement Agreement Agreement") are:
3 City of Long Beach ("LB") a California
municipal corporation -
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Board of Harbor Commissioners of the City of
5 Long Beach ("LB Board") the chief governing
body and policy making entity of the Port of
6 Long Beach ("LB Harbor") and one of the
departments of the City of Long Beach
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City of Los Angeles ("LA") a chartered
8 California municipal corporation
9 Board of Harbor Commissioners of the City of
Los Angeles ("LA Board") the chief governing
10 body and policy making entity of the Port of
Los Angeles ("LA Harbor")
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City of Compton ("Compton") a chartered
12 California municipal corporation
13 City of Huntington Park ("HP") a California
municipal corporation
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City of Lynwood ("Lynwood") a California
15 municipal corporation
16 City of South Gate ("SG") a California
municipal corporation
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City of Vernon ("Vernon") a chartered
18 California municipal corporation
19 Alameda Corridor Transportation Authority
(".ACTA") a joint powers authority
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Southeast Cities Transportation Authority
21 ("SECTA") a joint powers authority
22 Association for the Mitigation of
Transportation Impacts ("Assoc.")
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Each signatory is a "Party" and collectively they are the
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"Parties."
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2. RECITALS
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2.1 ACTA is a Joint Powers Authority created by a contract
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dated August 31, 1989, between LB and LA and presently
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1 includes Compton, HP, Lynwood, SG and Vernon as members
2 of its governing board. Such Authority was formed by
3 LA and LB pursuant to Government Code §6500 et sea.
4 2.2 ACTA is the proponent of the Alameda Corridor
5 Transportation Project (hereinafter "Project") and has
6 taken the following actions among others in furtherance
~ of the Project:
8 2.2.1 Certified a final Environmental Impact Report
9 ("EIR") in January 1993 prepared in accordance
10 with the California Environmental Quality Act.
11 2.2.2 Approved a final Environmental Impact
12 Statement ("EIS") prepared in accordance with
13 the National Environmental Policy Act for
14 submission to the U.S. Department of
15 Transportation.
16 2.3 SECTA, is a Joint Powers Authority created by Compton,
17 HP, Lynwood, SG and Vernon in a Joint Powers Agreement
18 effective on or about February 13, 1992. Such agency
19 was formed pursuant to Government Code §6500 et sea.
20 2.4 The LB Harbor is the chief governing body and policy
21 making entity for the Port of Long Beach. The LB
22 Harbor facilitates the movement of goods in trade and
23 commerce and has approved the construction of various
24 projects to expand the Port in order to expand its
25 capacity to facilitate the movement of goods in
26 interstate commerce.
27 2.5 The LA Harbor is the chief governing body and policy
28 making entity of the Port of Los Angeles. LA Harbor
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1 facilitates the movement of goods in trade and
2 commerce. The Harbor has approved the construction of
3 various projects to expand its capacity to facilitate
4 the movement of goods in interstate commerce.
5 2.6 Joint Powers Agreement.
6 2.6.1 LB and LA entered into a Joint Exercise of
7 Powers Agreement ("JPA") on August 31, 1989.
8 They later entered into a first amendment to
9 said JPA on or about November 21, 1990; a
10 second amendment to said JPA on or about
11 October 23, 1991; and a third amendment to
12 said JPA on January, 1993. This JPA together
-13 with its amendments created ALTA.
14 2.7 ACTA Governing Board. The chief governing body and
15 policy making entity of ACTA. The membership of the
16 ACTA Governing Board presently includes Compton, HP,
17 Lynwood, SG, Vernon, State of California Department of
18 Transportation ("CALTRANS"), Metropolitan
19 Transportation Authority ("MTA"), Los Angeles County,..
20 LA Harbor, LB Harbor, the City of Carson, a councilman
21 from the Los Angeles Harbor District, and a councilman
22 from Long Beach. These entities were provided,
23 pursuant to the JPA, voting membership on the ACTA
24 Governing Board.
25 2.8 LB, and LA, LB Harbor and LA Harbor are collectively
26 referred to hereinafter as "Ports".
27 2.9 Compton, a chartered California municipal corporation,
28 is located north of the Ports and a portion of the
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1 Project will be constructed within its boundaries. It
2 is presently a member of the ACTA Governing Board
3 pursuant to the JPA.
4 2.10 HP, a California municipal corporation, is located
5 north of the Ports and a portion of the Project will be
6 constructed within its boundaries. It is presently a
7 member of the .ACTA Governing Board pursuant to the JPA.
8 2.11 Lynwood, a California municipal corporation, is located
9 north of the Ports and a portion of the Project will be
10 constructed within its boundaries. It is presently a
11 member of the ACTA Governing Board pursuant to the JPA.
12 2.12 SG, a California municipal corporation, is located
13 north of the Ports and a portion of the Project will be
14 constructed within its boundaries. It is presently a
15 member of the ACTA Governing Board pursuant to the. JPA.
16 2.13 Vernon, a chartered California municipal corporation,
17 is located north of the Ports and a portion of the
18 Project will be constructed within its boundaries. It
19 is presently a member of the ACTA Governing Board
20 pursuant to the JPA.
21 2.14 Compton, HP, Lynwood, SG and Vernon will hereinafter be
22 collectively referred to as the "Cities" or
23 individually as City.
24 2.15 Compton, Lynwood, SG, Vernon and the Assoc. initiated
25 litigation in the Los Angeles Superior Court, Case No.
26 BC 129447 ("Lawsuit"), challenging the Third Amendment
27 to the JPA and, among other things, raised issues
28 regarding their .alleged right as members of the ACTA
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1 Governing Board to vote on various matters affecting
2 ACTA.
3 2.16 The Ports and ACTA were served as defendants in the
4 lawsuit.
5 2.17 Compton, Lynwood, SG, Vernon, Assoc., LB Board, LB
6 Harbor, LA Board, LA Harbor and ACTA (the "Parties" to
7 the lawsuit) and HP desire to settle all controversies
8 relating to the lawsuit and to settle issues relating
9 to municipal revenue losses as provided in Section 5.2.
10 To further provide an appropriate process to consider,
11 determine and resolve construction-related claims and
12 the mitigation of adverse impacts during the
13 construction and operation of the Project.
14 2.18 Settlement Negotiations. The Parties to the lawsuit
15 and Parties to the Agreement who are not involved in
16 the lawsuit ("all Parties") have engaged in
17 confidential settlement negotiations, which
18 negotiations have resulted in a settlement between all
19 Parties, which is embodied in the terms and conditions
20 of this Agreement.
21 3. DEFINITIONS
22 3.1 SECTA Construction Claims Technical Committee. A
23 committee created by SECTA to investigate construction-
- 24 related claims made by third parties and to propose
25 recommendations regarding these claims to SECTA.
26 3.2 Fourth Amendment. An agreement which modifies or
27 supersedes the existing JPA between the Cities of Los
28 Angeles and Long Beach which, among other things,
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1 establishes a new composition~of the ACTA Governing
2 Board.
3 3.3 EIR. The Environmental Impact Report for the Alameda
4 Corridor which was prepared for the ACTA, and which was
5 certified in January 1993, by the ACTA Governing Board.
6 3.4 EIS. The Environmental Impact Statement for the Alameda
7 Corridor which was prepared for the ACTA and was
8 approved in the Record of Decision.
9 3.5 Job Training. Training to be provided to residents of
10 the Cities with the intent to qualify such inhabitants
11 for Project jobs.
12 3.6 MOU. The Memorandum of Understanding of December 22,
13 1994, which sets forth the terms for a joint operating
14 agreement to be entered into among (i) the Southern
15 Pacific Transportation Company; (ii) the Atchison,
16 Topeka & Railway Company; (iii) the Pacific Railroad
17 Company; (iv) LA, acting by and through the LA Port;
18 (iv) LB, acting by and through the LB Port.
19 3.7 ROD. The May 6, 1996, Record of Decision provided by
20 the U.S. Department of Transportation Federal Highway
21 Administration and Federal Railroad Administration,
22 regarding the EIS for the Alameda Corridor Project.
23 3.8. Association. The Association for the Mitigation of
- 24 Transportation Impacts of Ports Expansion,. an
25 unincorporated association, which was formed by the
26 cities of SG, Vernon, Compton and Lynwood for the
27 purpose of asserting the rights alleged in the
28 complaint in LASC Case No. BC 129447.
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1 4. AGREEMENT
2 4.1 The Cities agree as follows:
3 4.1.1 To support the timely construction of the
4 Project.
5 4.1.2 To make a decision: (i) within sixty (60) days
6 after an application is deemed complete; or
~ (ii) within one hundred and fifty days (150)
8 after the application is filed, even though it
9 may be incomplete; or (iii) within thirty (30)
10 days after receiving a written notice to make
11 such a decision where such notice can be made
12 one hundred and .twenty (120) days after the
13 application is filed; when ACTA makes a
14 specific application to obtain either of the
15 following: (1) an encroachment permit; (2) a
16 building permit; (3) a request for a joint
17 easement for sharing of right-of-way; and (4)
18 a permit or entitlement (including, but not
19 limited to, street closures, lane closures,
20 the approval of staging areas, hours of
21 construction and access to water) needed by
22 ACTA in order to accommodate the construction
23 of the Project if ACTA pays all costs
24 reasonably necessary for each city to make a
25 timely decision, which such costs shall
26 include the cost to retain consultants to
27 assist the city or city staff in making any
28 determinations necessary to make a decision on
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1 a permit application.
2 4.1.2.1 That when making a discretionary
3 decision on permits, to exercise
4 such discretion in the granting of
5 such permits related to the Project
6 consistent with the standards
~ followed by the City of Los Angeles
8 when providing. such similar permits
9 for the Project to the extent that
10 such limitation is legally
11 permissible.
12 4.1.3 To provide to the SECTA Construction Claims
13 Technical Committee a staff individual or
14 individuals with appropriate technical
15 expertise from each City to attend all
16 meetings of the SECTA Construction Claims
17 Technical Committee subject to reimbursement
18 for the cost incurred for such employee,
19 including fringe benefits and overhead.
20 4.1.4 To provide to the Project Development
21 Committee ("PDC") a staff individual or
22 individuals with technical expertise from each
23 city to attend all meetings of the PDC,
24 subject to reimbursement for the costs
25 incurred for such individual, including fringe
26 benefits and overhead.
27 4.1.5 To support a Fourth Amendment to the Joint
28 Powers Agreement to be enacted by the Cities
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1 of LA and LB which will, among other things,
2 provide the following:
3 4.1.5.1 Establish a new composition of the
4 ACTA Governing Board. The Cities
5 will .not object if they are not
6 given a position on the new
7 Governing Board.
8 4.1.5.2 To formally acknowledge SECTA as an
9 advisor to ACTA in the construction
10 of the Alameda Corridor. To further
11 provide that the ACTA Governing
12 Board will meet with the SECTA
13 Governing Board on at least a
14 quarterly basis and as otherwise
15 necessary to review the progress of
16 Project construction.
17 4.1.5.3 Establish the PDC, as further
18 described in Exhibit "C"
19 (incorporated by this reference as
20 though fully set forth herein), with
21 the authority to make a
22 recommendation to the ACTA Governing
23 Board. on all the issues relating to
_ 24 (1) construction scheduling; and (2)
25 mitigation. The intent of creating
26 the PDC is to provide a forum for
27 PDC members and SECTA to present and
28 resolve issues and facilitate the
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1 expeditious development of the
2 Project.
3 4.1.6 To dismiss the Lawsuit with prejudice with
4 each Party bearing its own costs.
5 4.1.7 Cities accept the following conditions:
6 4.1.7.1 Cities agree not to institute or
7 finance an action challenging the
8 LA/LB approval and execution of the
9 Fourth Amendment if it is consistent
10 with Section 4.1.5 of this
11 Agreement.
12 4.1.7.2 Cities will support funding requests
13 to the "MTA" and other state and
14 federal sources for the Project.
15 4.1.7.3 Cities will support the timely
16 construction of the Alameda
17 Corridor.
18 4.1.7.4 Cities agree not to file, or finance
19 any legal action, challenging the
20 Record of Decision on the EIS.
21 4.2 The Ports agree as follows:
22 4.2.1 To support the timely construction of the
23 Project.
24 4.2.2 To make the payment of any third party
25 construction-related claim which is determined
26 to be eligible for payment, including the cost
27 of the mediation procedure provided for in
28 Exhibit "D" (incorporated by this reference as
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1 though fully set forth herein) to this
2 Agreement.
3 4.2.3 That items 1-13 in Exhibit "A" (incorporated
4 by this reference as though fully set forth
5 herein) are Project construction impacts which
6 must be mitigated as Project construction
~ impacts and the costs associated with such
8 mitigation are .Project costs and to make the
9 payment of such costs.
10 4.2.4 In the event-that disagreements arise between
11 ACTA, and SECTA or a City, concerning: (1)
12 contractors' compliance with permits, EIR/EIS
13 mitigation measures, or other previously
14 agreed upon mitigation measures; or (2) the
15 adequacy of the mitigation measures (a) set
16 forth in any permit, (b) meeting the
17 requirements of the EIR/EIS, or (c) any other
18 previously agreed upon mitigation measures
19 including the items detailed on Exhibit "A",
20 then such disagreements shall be submitted to
21 the PDC. The PDC will evaluate the issue and
22 make a recommendation to ACTA as described in
23 Section 4.1.5.3. ACTA shall enforce
24 contractors' compliance with any such item.
25 4.2.5 To provide SECTA with an administrative and
26 technical staff in order to enforce the
27 provisions in this Agreement. Therefore, to
28 provide funding to the extent provided for
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1 herein by making a payment to SECTA, on or
2 before April 15 each year. The first annual
3 payment to SECTA for such purpose shall be
4 made within thirty (30) days of the Parties'
5 execution of this Agreement.. Thereafter, each
6 additional annual payment referred to herein
~ shall be made on or before April 15 of the
8 respective year. The final payment for such
9 activity shall be made on or before April 15,
10 2000, which shall fund SECTA's operation
11 through April 15, 2001. The annual payment to
12 be provided in the first year shall be
13 $350,000. Payments after the first year, are
14 specified in the attached Exhibit"B"
15 (incorporated by this reference as though
16 fully set forth herein) and are intended to
17 offset the effects of inflation.
18 4.2.6 To make the payment of an annual committee fee
19 to SECTA in the same time periods provided for
20 in 4.2.5. To fund the expenses associated with
21 the SECTA Construction Claims Technical
22 Committee. This fee shall be equal to $225,000
23 the first year. Payments after the first year
- 24 are specified in the attached Exhibit "B" and
25 are intended to offset the effects of
26 inflation. SECTA will use a portion of such
27 funds to reimburse the Cities for the cost of
28 City engineering staff who will attend such
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1 Committee meetings. The Construction Claims
2 Technical Committee shall be formed within
3 thirty (30) days of the execution of this
4 Agreement. Any and all consultants retained
5 to work for such Committee shall be approved
6 by the Governing Board of SECTA.
7 4.2.7 To make the payment of an annual PDC technical
8 support fee to SECTA in the same time periods
9 provided for in Section 4.2.5. This fee shall
10 be equal to $225,000 the first year. Payments
11 after the first year are specified in the
12 attached Exhibit "B" and are intended to
13 offset the effects of inflation. The fee
14 shall be used to fund the expenses associated
15 with SECTA participation in the PDC. SECTA
16 will use a portion of such funds to reimburse
17 the Cities for the cost of city engineering
18 staff who will attend the PDC meetings.
19 4.2.8 To make the payment on April 15 of each year
20 of an annual economic development fee to SECTA
21 for seven (7) years. The first annual payment
22 to SECTA for such purpose shall be made within
23 thirty (30) days of the Parties' execution of
24 this Agreement. The final annual payment for
25 such activity shall be made on April 15, 2002,
26 which shall fund such activity through April
27 15, 2003. The annual payment to be provided in
28 the first year shall be $400,000. Payments in
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1 future years of economic development fees are
2 specified in the attached Exhibit "B" and are
3 intended to offset the effects of inflation.
4 Such economic development fees shall be used
5 by SECTA within the five (5) cities to promote
6 economic development along the Alameda
7 Corridor Transportation Project.
8 4.2.9 To make payment of an annual Job Training. fee
9 to SECTA for allocation to Job Training
10 programs in the same time periods provided for
11 in Section 4.2.5. This fee shall be equal to
12 $225,000 the first year. Payments in future
13 years are specified in the attached Exhibit
14 "B" and are intended to offset the effects of
15 inflation.
16 4.2.10 To make payments of the following sums which
17 Cities agree to accept each year as complete
18 payment for the anticipated loss of sales tax,
19 business license revenues, utility tax and
20 property tax revenues which Cities allege will
21 be adversely impacted by the Project prior to
22 and during construction, for the time periods
23 specified in Section 5.2 and such sums shall-
24 be paid to each city in the same time periods
25 provided for in Section 4.2.5:
26 Compton $625,000 per year
27 Lynwood $200,000 per year
28 HP $400,000 per year
14
1 SG $200,000 per year
2 Vernon $200,000 per year
3 4.2.11 To make payment to Vernon of a miscellaneous
4 settlement payment of $600,000 within thirty
5 (30) days of the Parties' execution of this
6 Agreement.
7 4.3 ACTA agrees as follows:
8 4.3.1 To the extent it has funding available to it
9 to pay all costs provided for in 4.1.3, 4.1.4,
10 4.1.6, 4.2.2, 4.2.3, 4.2.4, 4.2.5, 4.2.6,
11 4.2.7, 4.2.8, 4.2.9, 4.2.10 and 4.2.11.
12 4.3.2 That it shall (i) direct the Alameda Corridor
13' Engineering Team ("ACET") to provide for-the
14 distribution of appropriate technical studies
15 to provide to the SECTA Construction Claims
16 Technical Committee, the ACTA and SECTA
17 Governing Boards, PDC and ERP in order to
18 monitor, identify and establish mitigation
19 measures relating to the Project.
20 4.3.3 To enforce the provisions of the MOU provided,
21 that the Cities and SECTA agree that this
22 provision in and of itself does not confer any
23 rights upon the Cities or SECTA to object to
24 any subsequent amendments to the MOU.
25 4.3.4 To direct ACET to prepare a traffic management
26 plan in consultation with each City and to
27 file copies of all construction plans with
28 each City for those portions of the Project.
15
1 which will be built in said City.
2 4.3.5 To use rail transportation rather than trucks
3 to the extent that it is practical and
4 financially feasible, subject to all
5 applicable state, federal and local rules and
6 regulations, the permit process, the EIS and
7 the EIR to move contaminated earth from the
8 right-of-way.
9 4.3.6 To direct ACET to prepare a plan in
10 consultation with SECTA and to obtain the
11 approval of SECTA prior to engaging in such
12 activities relating. to the Project in any
13 City:
14 (i) Community relations.
15 (ii) Public outreach.
16 (iii) Public communications plans.
17 4.4 SECTA agrees as follows:
18 4.4.1 To support the timely construction of the
19 Project.
20 4.4.2 To support efforts to obtain funding for the
21 Project.
22 4.4.3 To create and implement the SECTA Construction
23 Claims Technical Committee..
24 4.4.4 To support the PDC and to assist-the PDC in
25 creating and implementing mitigation measures
26 provided for in the EIR/EIS in respect to
27 Items 1-13 in Exhibit "A".
28 4.4.5 To support the mediation procedures provided
16
1 for in Exhibit "D" and the arbitration
2 procedures provided for in Exhibits "E" and
3 "F" (incorporated by this reference as though
4 fully set forth herein).
5 4.5 Allocation of Funds. It is understood that the Cities
6 are responsible for the allocation of the funding
7 amounts provided for herein. Such allocation provided
8 for in Exhibit "B" identifies the recipient of each fund...
9 and the purpose for which the funds are to be used. For
10 purposes of applying the release language in Section
11 5.3, all Parties hereto agree to such allocations.
12 Further, all Parties agree that the payment of said
13 funds by the Ports or ACTA, are Project costs for
14 purposes which are related to the planning, construction
15 and implementation of the Project. However, the Ports
16 and ACTA hereto disclaim any responsibility for the
17 allocation other than to agree that the total sum paid
18 pursuant to this Agreement is paid to support the
19 Project.
20 5. PROHIBITION AGAINST LITIGATION
21 5.1 No Party shall institute, maintain, or prosecute any
22 action or any claim or contention in any action, at law
23 or in equity against each other, or any proceeding or
_ 24 other claim for damages or relief against each other,
25 based in whole or in part on the issues raised in -the
26 lawsuit. Except that a Party may initiate litigation if
27 necessary to enforce the terms and Condit-ions of this
28 Agreement.
17
1 5.2 The Cities and-SECTA agree to release and forever
2 discharge ACTA or any successor thereto and LA, and LB,
3 the LA Harbor, LB Harbor, LA Board and LB Board for all
4 losses of municipal revenue resulting from sales tax,
5 business license, utility tax and property tax suffered
6 by the Cities as a result of the planning and
~ construction of the Project for the seven (7) year
8 period from July 1, 1996 through June 30, 2003.
9 5.3 To the extent that LA, LB, LA Harbor, LB Harbor, the LB
10 Board the LA Board or ACTA is required pursuant to an
11 order, of a court of competent jurisdiction, or a
12 funding agency for the Project to pay to either the
13 Cities or SECTA any money to fund any of the matters
14 provided for in Exhibit "B," the Cities and SECTA
15 further agree to provide a credit against any such order
16 for the amount of the funds paid which are specified in
17 Exhibit "B" in accordance with the categories provided
18 for therein.
19 6. TERM OF AGREEMENT
20 This Agreement shall be deemed to be effective as of July 1,
21 1996.
22 NONPRECEDENT AND RESERVATION OF RIGHTS
23 7.1 Nonprecedent. None of the principles or-the
24 methodologies underlying this Agreement shall be deemed
25 by .any Party as binding precedent in any other
26 proceeding or litigation except to the extent
27 specifically .stated herein. Moreover, by entering this
28 Agreement, the Parties do not expressly or implicitly
18
1 concede that. the principles underlying this Agreement
2 are correct. The Parties have assented to the
3 principles underlying this Agreement in order to arrive
4 at the settlement embodied in this Agreement. The
5 Parties expressly reserve the right to advocate in
6 current and future proceedings (except where
7 participation in such proceedings or such advocacy is
8 prohibited elsewhere in this Agreement) principles and
9 positions which may be different than those underlying
10 this Agreement, and the Parties expressly declare that
11 this Agreement should not be construed as a precedent
12 for or against any of them in such advocacy.
13 7.2 Extent Settlement Agreement Constitutes Waiver of
14 Rights. All Parties agree that nothing provided in this
15 Agreement shall be construed as a waiver of any claim or
16 right to seek, on the basis of either law or equity,
17 before any judicial, administrative, or governmental
18 forum or before any arbitrator or arbitration panel the
19 modification, amendment, extension, cancellation, or
20 termination of any contract between them. Except as
21 specifically set forth herein, the Parties agree that
22 the fact of having entered into this Agreement shall not
23 in any way alter, amend, change or terminate any such
_ 24 right or claim or provide any defense thereto. Further,
25 all Parties agree that the execution of this Agreement
26 or the pursuit of any course of conduct under this
27 Agreement shall not be introduced as evidence or used
28 for any purpose in any judicial, administrative, or
19
1 governmental forum or before any arbitrator or
2 arbitration panel, except to enforce the terms and
3 conditions of this Agreement.
4 7.3 Non-Admission by Defendants. By its execution of this
5 Agreement, Defendants (LA, LB, LA Harbor, LB Harbor, LA
6 Board, and LB Board) do not admit to any allegations
7 relating to any of their activities including, but not
8 limited to, those raised by the Plaintiffs in Los
9 Angeles Superior Court Case No. BC 129447.
10 8. .PREVIOUS COMMUNICATIONS
11 8.1 This Agreement reflects the entire agreement and
12 understanding among the Parties as to the subject matter
13 of this Agreement, and supersedes all prior agreements,
14 commitments, representations, and discussions among the
15 Parties.
16 9. NONSEVERABILITY
17 9.1 All Parties understand and agree that this Settlement
18 ~ Agreement is subject to each and every condition set
19 forth herein, and each term of this Settlement Agreement
20 is in consideration and support of every other term,
21 therefore, the various provisions of this Agreement are
22 not severable.
23 10. NONWAIVER OF CONTRACTUAL RIGHTS
24 10.1 The failure of any Party to insist promptly in any one
25 or more instances upon strict performance of any
26 provision of this Agreement, or to enforce any of its
27 rights, shall not be construed as a waiver of any such
28 provision or the relinquishment of any such rights.
20
1 11. NOTICES
2 11.1 Any formal notice, demand or request provided for in
3 this Agreement, or served, given or made in this
4 Agreement, or served, given or made in connection with
5 it, shall be in writing and shall be .deemed properly
6 served, given or made if delivered in person or sent by
7 United States, mail, postage prepaid, to the person
8 specified below:
9 To ACTA: Attention: Gil V. Hicks
General Manager
10 One Civic Plaza, Suite 435
Carson, California 90745
11
12 To SECTA: Attention: Albert Robles
General ManacLer
13 11330 Bullis Road
Lynwood California 90262
14
15 To COMPTON: Attention: Howard Caldwell
City Manager
16 205 S. Willowbrook Avenue
Compton CA 90220
17
To HUNTINGTON
18 PARK: Attention: Don Jeffers
City Administrator
19 6550 Miles Avenue
Huntington Park, California 90255
20
To LYNWOOD: Attention: Faustin Gonzales
21 City Manager
11330 Bullis Road
22 Lynwood CA 90262
23 To SOUTH GATE: Attention: Ronald P. George
City Manager.
24 8650 California Avenue
South Gate, California 90280
25
To VERNON: Attention: Bruce V. Malkenhorst
26 City Administrator
4305 Santa Fe Avenue
27 Vernon, California 90058
28
21
1 To LOS
ANGELES: Attention: Keith Comrie
2 City Administrative Officer
200 North Main Street, Room 300
3 Los Angeles, California 90012
4 To LA BOARD: Attention: Ezunial Burts
Port of Los Angeles
5 Post Office Box 151
San Pedro, California .90733
6
To LONG BEACH: Attention: James C. Hankla
~ City Manager
333 West Ocean Blvd.., 13th Floor
8 Long Beach California 90802
9 To LB BOARD: Attention: Steve Dillenbeck
Port of Long Beach
10 Post Office. Box 570
Long Beach, California 90801
11
12 10.2 Any Party may at any time and from time to time, by
13 notice to each other Party,. change the designation or
14 address of the person so specified as the one to receive
15 notices pursuant to this Agreement.
16 12. RELATIONSHIP OF PARTIES
17 12.1 The covenants, obligations and liabilities of the
18 Parties are intended to be several and not joint or
19 collective. Nothing contained in the Agreement shall be
20 construed to create an association, joint venture,
21 trust, agency, or partnership. Each Party shall be
22 individually responsible for its own covenants,
23 obligations and liabilities as provided in this
24 Agreement. No Party shall be under the control of or
25 shall be deemed to control another Party. No Party
26 shall be the agent of or have a right or power to bind
27 another Party without such other Party's express written
28 consent.
22
1 13. NO THIRD PARTY RIGHTS
2 13.1 The Parties do not intend to create rights in, or to
3 grant remedies to, any third party as a beneficiary of
4 this Agreement or of any duty, covenant, obligation or
5 undertaking established herein, except as specifically
6 set forth herein.
7 13.2 By entering into this Agreement, Defendants do not hold
8 themselves out to provide like or similar benefits to
9 any third party.
10 14. ASSIGNMENT
11 14.1 No Party shall assign or otherwise transfer this
12 Agreement, or its right or interest or any part thereof
13 to any third party, without the prior written consent of
14 each other Party except as set forth herein. Such
15 consent shall not be unreasonably withheld. No
16 assignment of this Agreement shall relieve the assigning
17 party of its obligations until such obligations have
18 been assumed in writing by the assignee. When duly
19 assigned in accordance with the .foregoing, this
20 Agreement shall be binding upon and inure to the benefit
21 of the assignee.
22 15. GOVERNING LAW AND REGULATIONS
23 15.1 This Settlement Agreement shall be interpreted,
24 governed, and construed under the laws of the State of
25 California as if executed in and to be performed wholly
26 within the State of California.
27 16. CONSTRUCTION OF AGREEMENT
28 16.1 Ambiguities or uncertainties in the wording of this
23
1 Agreement shall not be construed for or against the
2 Parties, but shall be construed in a manner that most
3 accurately reflects the intent of the Parties, as
4 expressed herein, when this Agreement was executed and
5 is consistent with the nature of the rights and
6 obligations of the Parties with respect to the matter
7 being construed.
8 17. CAPTIONS AND HEADINGS
9 17.1 All captions and headings appearing in this Agreement
10 are inserted to facilitate reference and shall not
11 govern the interpretations hereof.
12 1g, SIGNATURE CLAUSE-
13 18.1 The signatories hereto represent that they have been
14 appropriately authorized to enter into this "SETTLEMENT
15 AGREEMENT AMONG THE CITY OF LONG BEACH, THE BOARD OF
16 HARBOR COMMISSIONERS OF THE CITY OF LONG BEACH, THE CITY
17 OF LOS ANGELES, THE BOARD OF HARBOR COMMISSIONERS OF THE
18 CITY OF LOS ANGELES, THE CITIES OF COMPTON, HUNTINGTON
19 PARK, LYNWOOD, SOUTH GATE, AND VERNON, THE ASSOCIATION
20 FOR THE MITIGATION OF TRANSPORTATION IMPACTS, THE
21 ALAMEDA CORRIDOR TRANSPORTATION AUTHORITY,AND THE
22 SOUTHEAST CITIES TRANSPORTATION AUTHORITY RELATING TO
23 THE CONSTRUCTION OF THE ALAMEDA CORRIDOR TRANSPORTATION
24 PROJECT AND THE SETTLEMENT OF ISSUES RAISED IN LOS
25 ANGELES SUPERIOR COURT CASE NO. BC 129447" on behalf of
26 the Party for which each signs.
27 19. NUMBER OF ORIGINALS
28 19.1 This Settlement Agreement is executed in twelve (12)
24
1 counterparts, each of which shall be deemed to be an
2 original.
3 20. TERMINATION
4 20.1 Either Party may given written notice to the other Party
5 of termination of this Agreement, if, after the
6 effective date of this Agreement:
7 (i) any court of competent jurisdiction issues a
8 final order (an order no longer subject to
9 judicial review) which materially modifies
10 this Agreement in such a manner that either
11 Party is required to incur new or different
12 obligations not expressly provided herein or
13 that either Party is relieved, for whatever
14 reason, of any obligation expressly provided
15 herein; or
16 (ii) The Ports or ACTA or a successor agency is
17 - unable to obtain funding within two and one
18 half (2 2) years from the date the court
19 approves the Agreement to construct at least
20 seventy percent (70%) of the Project and does
21 not construct the Project. This provision will
22 not affect any amounts already paid pursuant
23 to this Agreement.
_ 24 (iii) All the duties and obligations provided for in
25 this Agreement have been fully discharged and
26 have expired.
27 20.2 Such notice shall be given no later than ninety (90)
28 days after such final order or event. The Parties
25
1 shall, within thirty (30) days after such notice,
2 commence negotiations to attempt in good faith to
3 renegotiate the terms and conditions of this Agreement
4 so as to restore the original balance of benefits and
5 burdens contemplated by the Parties when they executed
6 this Agreement. If this new agreement cannot be
7 negotiated within one hundred eighty (180) days after
8 the commencement of such negotiations, unless the
9 Parties agree upon an extension, either Party may file
10 with a court of competent jurisdiction a petition to
11 reform the Agreement. Payments provided for in this
12 Agreement may be suspended thirty (30) days after
13 receipt of such notice. This Agreement shall not
14 terminate until a final order of the court is issued
15 which approves either (1) a new agreement or (2)
16 terminates the Agreement.
17 20.3 In the event the court orders the termination of the
18 Agreement:
19 (a) This Agreement shall not be binding on any Party;
20 (b) The Parties shall in such event be deemed to have
21 reserved all their respective rights in any
22 proceedings settled in said Agreement; and
23 (c) This Agreement shall not be part of the record in
24 any proceedings, and all discussion and negotiation
25 thereon shall be privileged.
26 21. GENERAL CONDITIONS
27 21.1 This Agreement is conditioned expressly upon the
28 approval or acceptance of the Superior Court of Los
26
1 Angeles, or the Appellate Court if required, without a
2 reservation, change, modification, or deletion
3 unacceptable to any Party. "Approval or acceptance" as
4 used in this Agreement refers to a final order of the
5 court which is no longer subject to judicial review.
6 21.2 This Agreement is made upon the explicit understanding
~ that it constitutes a negotiated settlement and that .all
8 offers of settlement and discussions relating thereto
9 are and shall be privileged and shall be without
10 prejudice to the position of any Party. In the event
11 that the court does not by order accept this Agreement,
12 the Agreement shall be deemed withdrawn and shall not
13 constitute part of the record in any proceeding or be
14 used for any other purpose.
15 21.3 Upon any breach of this Agreement, any Party may seek
16 whatever remedy it deems appropriate including, but not
17 limited to, reformation, rescission, termination, or
18 damages.
19 .21.4 No Party to this Agreement shall have a right to
20 withdraw from the Agreement unless and until the court
21 enters an order failing to approve this Agreement as
22 filed.
23 21.5 Except as otherwise specifically provided for herein,
24 this Agreement, whether or not approved, shall not be
25 offered as an admission or as evidence in any
26 legislative, administrative, .regulatory, or judicial
27 proceeding and shall not constitute an adjudication of
28 any question of law or fact for or against any Party.
27
1 IN WITNESS WHEREOF, the Parties execute this Settlement
2 Agreement as of the day of ,-1996.
3
CITY OF LONG BEACH
4
BY:
5
TITLE:
6 DATE:
7 ATTEST:
8 BY:
9 TITLE:
10
APPROVED AS TO FORM:
11
BY:
12
TITLE:
13
Seal•
14
15
BOARD OF HARBOR COMMISSIONERS
16 OF THE CITY OF LONG BEACH
17 BY:
18 TITLE:
DATE:
19
ATTEST:
20
BY:
21
TITLE:
22
23 APPROVED AS TO FORM:
24 gy;
25 TITLE:
26 Seal•
27
28
28
1 CITY OF LOS ANGELES
2 gy•
3 TITLE:
DATE:
4
ATTEST:
5
BY:
6
TITLE:
7
8 APPROVED AS TO FORM:
9 BY:
10 TITLE:
11 Seal•
12
13 BOARD OF HARBOR COMMISSIONERS
OF THE CITY OF LOS ANGELES
14
BY:
15
TITLE:
16 DATE:
17 ATTEST:
18 BY:
19 TITLE:
20
APPROVED AS TO FORM:
21
BY:
22
TITLE:
23
Seal•
24
25
26
27
28
29
1 CITY OF COMPTON
2 BY:
3 TITLE:
DATE:
4
ATTEST:
5
BY:
6
TITLE:
7
8 .APPROVED AS TO FORM:
9 By;
10 TITLE:
11 Seal•
12
13 CITY OF HUNTINGTON PARK
14 By:
15 TITLE:
DATE:
16
ATTEST:
17
BY•
18
TITLE:
19
20 APPROVED AS TO FORM:
21 By;
22 TITLE:
23 Seal•
- 24
25
26
27
28
30
1 CITY OF LYNWOOD
2 BY:
3 TITLE:
DATE:
4
ATTEST:
5
BY:
6
TITLE:
7
8 APPROVED AS TO FORM:
9 BY:
10 TITLE:
11 Seal•
12
13 CITY OF SOUTH GATE
14 BY:
15 TITLE:
DATE:
16
ATTEST:
17
BY:
18
TITLE:
19
20 APPROVED AS TO FORM:
21 BY:
22 TITLE:
23 Seal•
24
25
26
27
28
31
1 CITY OF VERNON
2 By.
LEONIS C. MALBURG
3
TITLE: Mayor
4 ~ DATE:
5 ATTEST:
6 BY:
BRUCE V. MALKENHORST
7
TITLE: City Clerk
8
9 APPROVED AS TO FORM:
10 By;
DAVID B. BREARLEY
11
TITLE: City Attorney
12
Seal°
13
14
ALAMEDA CORRIDOR TRANSPORTATION
15 AUTHORITY
16 BY:
17 TITLE:
DATE:
18
ATTEST:
19
BY:
20
TITLE:
21
22 APPROVED AS TO FORM:
23 By;
- 24 TITLE:
25 Seal•
26
27
28
32 `
1 SOUTHEAST CITIES TRANSPORTATION
2 AUTHORITY
BY:
3 ALBERT ROBLES
TITLE: General Manager
4 DATE:
5 ATTEST:
6 By;
HILARIO GONZALES
7 TITLE• Secretary
8
APPROVED AS TO FORM:
9
BY:
10 DAVID B. BREARLEY
TITLE: Legal Counsel
11
12 THE ASSOCIATION FOR THE
MITIGATION OF TRANSPORTATION
13 IMPACTS
14
BY:
15
City of Compton
16
BY:
17
City of Lynwood
18
BY:
19
City of South Gate
20
BY•
21
City of Vernon
22
23 ~
24
25
26
27
28
33
I
1 EXHIBIT "A"
2 CLASSIFICATION OF MITIGATION IMPACTS AND CONSTRUCTION ISSUES
3
MITIGATION IMPACTS
4
5 1. Truck traffic rerouting
6 2. Car traffic rerouting
~ 3. Rail traffic rerouting
8 4. Pedestrian traffic rerouting
g 5. Contaminated soil
10 6. Contaminated properties adjoining the Project
11 Vibration
12 8. Noise
13 g, Light and glare
14 10. Erosion
15 11. Surface runoff; flooding
16 12. Dewatering
17 13. Fugitive dust
18 THIRD PARTY CONSTRUCTION-RELATED CLAIMS SUBJECT TO MEDIATION
1g 1. Physical and structural damage to business or property, and
20 personal injuries to individuals (claims for personal injury
21 submitted to ACTA or the Ports which are not settled or
22 processed by contractors or subcontractors or their insurance
23 carriers).
24 2. Loss of business revenue due to:
25 a. Loss of customers.
26 b. Loss of production.
27 c. Inability to move product or raw materials.
28 3. Claims for business loss based upon legal precedent
A - 1
1 enforceable at the-time the claim is made.
2 MISCELLANEOUS PUBLIC SERVICE IMPACTS WHICH MUST BE MITI-GATED
3 1. Avoid exposing the cities to the loss of municipal revenues
4 including, but not limited to, sales tax and business license
5 revenue which exceeds the sums provided for in 4.2.12.
6 2. Avoid restricting the provision of governmental services (for
7 example: school, police, fire and emergency ambulance).
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A - 2
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Ul 171 OOOOUI O
O O O O O O O O
O O O O O O O O
O O O O O O O O
1 EXHIBIT "C" A
2
Project Development Committee
3
4 1. The membership of this committee will be comprised of twelve
(12) representatives from each of the following entities: LB
5 Harbor, LA Harbor, LA, LB, MTA, County of Los Angeles,
Carson, Compton, Lynwood, SG, HP, and Vernon.
6
2. Technical consultants engaged by ACTA to construct and
7 develop the Alameda Corridor will meet with the PDC on a
regular basis.
8
3. The PDC will meet with the ACET, the ACTA General Manager,
9 and the SECTA General Manager on a regular basis.
10 4. The PDC will vote on making a recommendation to the ACTA
Governing Board on the resolution of all (1) construction
11 scheduling; and (2) mitigation issues brought before it.
After such vote, the matter will be referred to the ACTA
12 Governing Board for resolution. If any member of the PDC
remains dissatisfied with the recommendation of the PDC or
13 with the resolution made by ACTA, the dispute may be
submitted to binding arbitration in accordance with Exhibit
14 uFn.
15 5. The Cities' participation on the PDC shall satisfy the
Mitigation Monitoring and Enforcement Program provided for in
16 the .Record of Decision on the Federal EIS.
17
18
19
20
21
22
23
- 24
25
26
27
28
C - 1
1 EXHIBIT "D"
2
The Ports and ACTA hereby establish an alternate dispute
3 resolution system which will provide for binding mediation of
third party construction-related claims filed with ACTA which are
4 in dispute between ACTA and SECTA and meet the qualification
provided below.
5
1. The initial review of the claim will be made by a
6 representative of ACTA who has the technical expertise to
assess the value of such claim ("Claims Assessor").
7
2. The Claims Assessor will make a recommendation to ACTA no
8 later than 90 days after the claim has been submitted to
ACTA. The Claims Assessor shall make a recommendation to
9 ACTA no less than 45 days from the date a fully completed
claim is filed with ACTA, if such date is less than 90 days
10 from the date the claim was first submitted to ACTA. ACTA or
a committee thereof, will make a decision to resolve the
11 claim within 30 days from receiving the recommendation from
the Claims Assessor.
12
3. ACTA will advise the claimant of its decision in writing by
13 placing a letter in the U.S. mail addressed to the claimant
at the location provided on the Claim Form.
14
4. The claimant has 30 days to accept or reject ACTA's decision.
15 If the claimant accepts the proposal, he must do so in
writing.-
16
5. If the claim is not resolved with ACTA to the claimant's
17 satisfaction, the claimant may. file his claim with SECTA.
The SECTA construction claims technical review committee will
18 evaluate the claim, and ACTA's decision thereon, and will
make a recommendation to SECTA within 45 days from the date
19 the claim is filed with SECTA.
20 6. SECTA will make a decision upon. the claim .within 30 days
after receiving the recommendation from the SECTA Technical
21 Review Committee and will submit its recommendation to ACTA.
22 7. If ACTA fails to accept SECTA's recommendation within 30 days
of receipt of SECTA recommendation, then SECTA may .submit
23 such claim to binding mediation between SECTA and ACTA.
_ 24 8. Binding mediation will only be permitted for nonpersonal
injury claims which do not exceed the self-insured
25 deductible, or $150,000, whichever is less. Those claims in
excess of the self-insured deductible, or $150,000, whichever
26 is less may be submitted to mediation at the request of SECTA
and .ACTA. In one year from the date of agreement, the PDC
27 will review the limit of $150,000 for claims and determine
whether the limit of $150,000 should be increased.
28
D - 1
1 A. The mediation panel will be comprised of one ACTA
representative, one SECTA representative and one member
2 from the panel of eight.
3 B. In order to ensure consistent resolution of
construction-related claims, the eight panelists shall
4 be selected from among members of the Los Angeles region
of the American Arbitration Association or any other
5 method which is mutually agreeable to SECTA and ACTA.
6 9. ACTA will consult with SECTA prior to offering any settlement
to a claimant of a claim for personal injury which does not
7 exceed $15,000. ACTA will have sole discretion to make
decisions on claims for personal injury which exceeds
8 $15,000.
9 10. Eligible construction-related claims shall be paid as
follows:
10
A. All construction-related claims, or portions thereof,.
11 which have been approved by ACTA and accepted by the
claimant shall be an eligible claim and shall be .paid
12 within thirty (30) days. of such written acceptance by
the claimant.
13
B. If the claimant does not accept ACTA's determination and
14 thereafter files such claims with SECTA, SECTA shall
consider such claim and make a recommendation to the
15 claimant and ACTA. If ACTA and the claimant accepts
SECTA's recommendation, then such claim shall be an
16 eligible claim and shall be paid within. thirty (30) days
of ACTA's decision and written acceptance by the
17 claimant.
18 C. If ACTA rejects SECTA recommendations, then SECTA may
submit the claim to binding mediation. If the claimant
19 accepts the decision from the binding mediation process,
and such acceptance is made in writing within 30 days of
20 receiving the decision from the mediation panel, then
such claim shall be an eligible claim and shall be paid
21 within 30 days from the date that claimant has given
notice to ACTA that claimant accepts the decision.
22
D. If the claimant rejects the decision from binding
23 mediation, then the claimant may submit such claim to
binding arbitration in accordance with the provisions of
_ 24 Exhibit "E", which is incorporated herewith as though
fully set forth herein. Such claimant may only submit a
25 claim to binding arbitration if such claimant waives any
litigation rights he may have and accepts the results of
26 such binding arbitration.
27
28
D - 2
1 EXHIBIT "E"
2 BINDING ARBITRATION FOR CONSTRUCTION-RELATED
CLAIMS BY THIRD PARTIES
3
If the claimant rejects the decision by the binding mediation
4 panel, the claimant can submit the claim to binding arbitration.
In doing so, the claimant waives his right to litigate the claim
5 in court and his right to receive an amount in excess of the claim
threshold. The arbitration process will vary depending upon the
6 amount of the claim.
~ If the claim is below $50,000, the case will be arbitrated before
one (1) arbitrator randomly selected from the panel of eight (8).
8 No award will exceed $50,000.
9 If the claim is between $50,000 and $150,000, the case will be
arbitrated before three (3) panel members. All members will be
10 randomly selected from the panel of eight (8). No award will
exceed $150,000.
11
All claims in excess of $150,000 may be voluntarily submitted to
12 binding arbitration if all parties agree to such submission.
Those claims will be arbitrated before the three (3) panel members
13 randomly selected from the panel of eight (8).
14 For all claims above $50,000, each party to the binding
arbitration will bear its respective costs.
15
For all claims above $15,000 but less than _$50,000, the claimant
16 will bear only 20% of the cost of such arbitration.
17 For all. claims less than $15,000, the claimant will bear no cost
for participating in such arbitration.
18
19
20
21
22
23
24
25
26
27
28
E - 1
1 EXHIBIT "F"
2 BINDING ARBITRATION FOR MITIGATION ISSUES
3
If a member of the PDC is dissatisfied with the recommendation of
4 the PDC or the decision of the ACTA Governing Board, he can
request arbitration of the issue before three (3) members of the
5 panel of eight (8). In doing so, the PDC member and the entity he
represents who request arbitration, waive his and its right to
6 litigate in court those issues presented and acknowledge that the
arbitrator does not have the authority to delay the Project.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
- 24
25
26
27
28
F - 1
(f,
CITY COUNCIL ~ ~ ~ ~ ~ DAVID B. BREARLEY
LEONIS G. MALBURG City Attorney
Mayor ~ FAX: (818) 330-5818
THOMAS A. YBARRA S. KEVIN WILSON
Mayor Pro-Tem Acting Director of Community Services & Water
FAX: (213) 588-2761
Wm. "BILL" DAVIS
Councilman KENNETH J. DeDARIO
' r Director of Light & Power
H. "LARRY" GONZALES FAX: (213) 583-1983
Councilman ~ ~ ~
°s ' ~ ~d ~ DAVE TELFORD
W. MICHAEL McCORMICK ` Fire Chief
Councilman FAX: (213) 581-1385
BRUCE V. MALKENHORST CITY HALL LOUIS RosENKRANTZ
City Administrator/City Clerk 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief
FAX: (213) 581-7924 TELEPHONE (213) 583-8811 - FAX: (213) 581-1178
July 25, 1996
VIA FEDERAL EXPRESS PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION
Steven N. Skolnik, Esquire
City Attorney, City of Huntington Park
2001 Wilshire Boulevard, Suite 600
Santa Monica, California 90403
Re: Proposed. Settlement - South Gate, et al. v. Los Angeles,
et al., LASC Case No. BC 129447, Court of Appeal No. 2nd
Civ. B100019
Dear Mr. Skolnik:
Councilman Raul Perez and Councilwoman Rosario Marin of the
~ City of Huntington Park have been .meeting with the council
representatives from the Cities of Compton, Lynwood, South Gate and
Vernon in order to promote the settlement of the litigation
relating to the Alameda Corridor Transportation Project.
It is my understanding that Councilman Perez has provided
copies of the previous settlement proposals and that you are to be
the point man to review these matters for presentation to the City
Council during the regularly scheduled City Council meeting to be
held on August 5, 1996.
Enclosed are the following documents:
1. Letter to Mayors O'Neill and Riordan
2. Execution copy of the Settlement Agreement
3. Letter to City Managers
4. Copy of draft City of Vernon resolution.
Although Huntington Park and the Southeast Cities
Transportation Authority (SECTA) are not parties to the litigation,
they play a vital role in the implementation of the settlement.
Mr. Steven N. Skolnik
July 25, 1996
Page 2
The council representatives of the five Cities believe that
all the Cities should consider adopting the Settlement Agreement as
drafted and make an offer of settlement to the defendants in this
matter who are (1) City of Los Angeles, (2) Port of Los Angeles,
(3) Board of Harbor Commissioners for the Port of Los Angeles, (4)
City of Long Beach, (5) Port of Long Beach, and (6) Board of Harbor
Commissioners for Port of Long Beach. The offer of settlement will
contain an expiration date of August 22, 1996.
During the negotiations, the defendants' representatives have
proposed various settlement proposals that have been rejected by
the other representatives. The defendants at this time have not
made a formal offer of settlement to the Cities.
In the settlement, Huntington Park is treated on an equal
basis with the other four Cities and will share in the benefits of
the proposal.
Exhibits B-1 and B-2 summarize the financial benefits of the
proposal. If you need further information relating to this
settlement, I would be more than happy to meet with you and discuss
this matter in more detail. If you have any questions, please
call.
Very truly yours,
nnq~~ )
~c~k ,
David B. Brearley
City Attorney
DBB:nc
Enclosures
cc: Bruce V. Malkenhorst (resolution only for enclosure
Michael Gagan (resolution only for enclosure)
..,....7x29-1996 9:25PM FROM 000000000000 p,~
CONF~DENTYAL
Offer of SettYement Summary
July 30, 1996
Governance
• The corridor cities ~evilI not object to a reconstituted ACTA governing board if
they aze not on the new governing board.
• SECTA will be formally acknowledged ~ the advisor to ACTA on the
construction of the proj ect.
• ACTA and SECTA will meet at least quarterly to review the progress of
project construction.
• A Pxoject De~reloprnent Committee (PDC) will be established to provide a
forum for SECTA and other PDC members to present azrd resolve with
members of ACTA issues relating to construction scheduling and mitigation,,
The 12-member PDC will consist of the SECTA cities, Caxsozx, the County of
Los Angeles, the M'PA, LA City, LA Part; LB City and'LB fort. I- f anv ~ .
member is dissatisfiied with the recommendation of the PDC or the decision of
the ACTA eovernin~ board, the issue in dispute may be submitted to binding
arbitration before a yanel of tkuree members of the American Arbitration
Association.
• The SECTA Construction GIaims Technical Committee will be empowered to ,
accept, review, and make recommendations to SECTA on construction-related
claims of $ i 50,000 or less that are nat resolved to the claimazlt's satisfaction
by ACTA. SECTA is empowered to m~alce recommendations on the claims to
ACTA. If ACTA fails to accept SECTA's recommendation on an~partieular
claim,- SECTA may submit the claim to bindine mediation. If the claimant
refuses to accept the resuits of binding mediation, he or she may submit the
claim to bixAding arbitration if he or she waives litigation rights. The purpose
of this process is to expedite the resoIutiou of claims in anon-litigious .
fashion.
• Project plans for community relations, public outreach, and public
coznmuz~acatiozxs plans must be prepared in consultation with SECTA anal t73aY
not be undertaken without the prior approval of SECTA,
Realistically, without this settlement agreement, the corridor cities will either reznaizx on
ACTA izr m rrzeaningless role or be removed from ACTA altogether. With this settlement
agreerz~ent, the cities are empowered through RECTA as a separate entity to cantizaue in
the advisozy role they currently have, and to play individually or through SECTA a xuajor
role on those matters most important to their constituents during construction:
7-~29-1996 9:26PM FROM 000000000000 P_2
CON~'1DE'I~TIAL
construction scheduling, the development and implementation of mitigation measures, the
tirnely resolutiozx of construction claims, and community relations and public outreach.
By remaining on ACTA itself', the cities will be in the awkward role of appearing in the
public eye to have responsibility for decisions they do not and cannot make.
Per~rnits
• Each city agrees to make a decision on a permit application within 60 days
after the application is deemed complete or within 150 days after the
application is filed, even though'it xnay be incomplete; or, within 30 days
after receiving written notice to make a decision where such notice can be
made after 120 days after the application is filed.
• ACTA, agrees to pay alI costs reasonably necessary for each city to make a
timely decision, including the costs of consultants to assist city staff in
rnakiz~g deteruxinations necessary to make a decision on a permit
application.
• Each city agrees to make discretionary decisions on permits that are
consistent with the standards followed by the City of Los Angeles when
providing similar permits for the project.
This language is designed to protect the interests of each city while providing a certainty '
of schedule to the permit application process. It does not give cities discretion they
currently do not have uNdez state Iaw and their own ordinances. On the othor hand, it does .
not put unacceptable conditions on each city's discretionary authority, as various port
proposals tried to do. The success each. city has in using the pezrnit process to obtain
enhancements will depend on each city's Negotiating ability. The standards already
followed by the City of Los Angeles on project permit applications provide for tk~e
generous exercise of discretion, On the North End projects alone, the City of Los Angeles
imposed the following conditions:
1. Washington Blvd. must be expanded from four lanes to six
2. Minerva Street must be improved. to a new condition ~ .
3. Drainage improvements must be made to Washi,zagton and 23rd
4. 23"' Street must be improved from Minerva to Washington .
5. A traffic signal must be placed at 23`~ and Vt7ashington
6. Signals must be synchronized from the 10 Freeway to Slauson
7. Alameda Stect must be striped
8. ACTA must contract with Los Angeles city staffto perform the signal
synchronization and striping work
7-29-1996 9=26PM FROM 000000000000 P,3
CONFIDENTIAL
In ordez to kno'~v the standards of discretion exercised by the City of Los Angeles when
providing permits similar to those asked of the cities, SECTA must be familiar with the
Memorandum of Agreement finally worked out between ACTA and the City and must
further monitor all "work orders" issued pursuant to xt. •
Payznex~.ts .
The total value of payrz~ex~ts to SECTA and the five cities is $17,571,457. The first year's
payment to SECTA and the individual cities will be made within 30 days of the execution
• of the agreement. Future payments will be z~nade on April 15 of each year.
Payments to SECTA and the individual cities are described ix~ Exhibit B. The payments
to SECTA are for the costs of administrative and technical staff, costs associated with
SECTA's role in construction claims resolution, and costs incun:ed by the cities because
of their participation in the Project Development Committee and the construction
scheduling and mitigation process. Additional payments provide seed money for job
training and economic development activities.
Payments to the cities include the potential loss of municipal revenue incurred by each
city by virtue of project construction. The municipal revenue loss coverage is significant
because ACTA acknowledges no legal responsibility to cover such loss. •
The $17.5 million does not represent the total amount of money that will inure to the
benefit of the cities, their residents, and their businesses by virtue of project construction.
The settlement agreement binds ACTA to the payment of costs associated with the
mitigation of 13 specific construction impacts and the casts incurred in the permit
application process. Further, beginning with the permit process and up to and through
binding arbitration, the cities will play a significant role in determining tl~e adequacy of
mitigation measures in their respective jurisdictions. Additionally, the claims resolution
process will result in tirrxely payments to residents for physical property damage, and to
businesses for loss of zevenue due to loss of customers, loss of production, and/or
inability to move product or raw material. Finally, the settle~xaent agreement binds ACTA
to avoid eztposix~g the cities to loss of revenue which exceeds the sums identified, and
ACTA must also avoid restricting the provision of governmental services such as schools,
police, fire, and annbulance service. •
i
Miscellaneous Provisions ~ •
TheThe citie~a, , ee
• To support the timely funding and construction of-the project
• To support a Fourth Amendment reconstituting ACTA •
• To dismiss the lawsuit with prejudice and not legally challenge the Fourth
Amendment ~ •
• Not to file or fxnaz~ce azzy legal action challenging the Record of Decision
7-~29-1996 9:27PM FROM 000000000000 P.Q
CONFfDENTf~L
• To release ACTA from any liability for loss of the specified municipal
revenues for a period of seven years (July 1, 199b through rune 30, 2003}
• To create and implement the SECTA Construction Claims Technical
Committee ~ .
• To support the Project Development Committee in creating and implementing
mitigation measures
To support the mediation and arbitration procedures established by the
settlement agreement.
The ports agree
~ To support the timely construction of the project
• To pay all eligible construction-related claims, including most of the costs o~ •
xnediatiztg such claims .
• To pay all costs of mitigation
• To enforce contractors' compliance with mitigation measures
• To direct the Alameda Corridor Engineering Team to provide to SECTA and
others appropriate technical studies to identify, establish, and monitor
mitigation measures relating to the project
• To enforce the IVlemorandum o~Understandiz~g with the railroads ~ .
• To prepare traffic management plans in consultation with each city anal to f Ie
all construction plans with each city for those portions of the project within
each city
• To the extent it is practical and feasible and consistent with all local, state, aad
federal regulations, to remove by rail rather than truck all contaminated earth
from the right-of--way.
Virhat the Scttletnent Agrecnnent Does Not Cavcr
Because of the passage of trine, it is easy to forget that the Irrigation filed against the ports
was narrowly focused on the legality of the Third Amendment and actions taken by the
Finance Committee under the Third Amendment. The agreerr~.ent is designed to settle the
issue of governance to the corridor cities' satisfaction by creating and cmpov~rering an
entity separate from ACTA. That is the main issue in the litigation; that is the xrxain result
of the Settlement agreement.
The settlement does not resolve all issues that now exist or will likely develop between
-the cities and the ports. Fox example, the Port of Long Beach absolutely refused to accept
language committing ACTA or the ports to local jobs or to a Project Labor Agreement
establishing a minimum percentage of local jobs and contractor dollars. The settlement
agreement does not address that issue and the ports understand that SECTA and the cities
will likely pursue that issue vigorously.
From where the corridor cities were a year ago and where they would likely be a yeax
from now, the settlement agreement represents a very substantial gaiu~.
7-?9-1996 9:28pM FROM 000000000000 p.5
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