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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: Settlement Agreement and Mutual Release
between the City of San Bernardino and Robertson's
Ready Mix, Ltd. for the settlement of pending litigation
and other disputes
From: JAMES F. PENMAN
City Attorney
Date: October 2, 2008
Recommended motion:
That the accompanying resolution, authorizing the execution of a Compromise Settlement Agreement and
Mutual Release between the City of San Bernardino and Robertson's Ready Mix, Ltd. be adopted.~
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James F. Penman
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Report
Ward:
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FUNDING REQUIREMENTS:
Amount: $100.000
Source: Account No. 527-415-5505
Finance:
Council Notes:
~:>o 2008 -352,5'
Agenda Item No. 12
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RESOLUTION NO. ~008-191
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A SETTLEMENT
4 AGREEMENT AND MUTUAL RELEASE FOR THE SETTLEMENT OF MATTERS IN
5 DISPUTE BETWEEN THE CITY AND ROBERTSON'S READY MIX, LTD.
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7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
8 SAN BERNARDINO AS FOLLOWS:
9 SECTION 1. The Mayor ofthe City of San Bernardino is hereby authorized and directed
10 to execute on behalf of said City a Settlement Agreement and Mutual Release between the City of
11 San Bernardino and Robertson's Ready Mix, Ltd. for the settlement of pending litigation and other
12 disputes, a copy of which Agreement is attached hereto marked Exhibit "A" and incorporated herein
13 by reference as fully as though set forth at length.
14 SECTION 2. The authorization granted by this Resolution shall expire and be void and
15 of no further effect if said Agreement is not executed by all parties and returned to the Office of the
16 City Clerk within sixty (60) days following the effective date of this Resolution.
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2008-393
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A SETTLEMENT
3 AGREEMENT AND MUTUAL RELEASE FOR THE SETTLEMENT OF MATTERS IN
4 DISPUTE BETWEEN THE CITY AND ROBERTSON'S READY MIX, LTD.
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a joint regu1fteeting thereof, held on the6..th
8 day of October
, 2008, by the following vote, to wit:
9 COUNCIL MEMBERS:
10 ESTRADA
11 BAXTER
12 BRINKER
13 DERRY
14 KELLEY
15 JOHNSON
16 MC CAMMACK
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Rac I Clark, City Clerk
The foregoing Resolution is hereby approved this~ day of October, 2008.
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or
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Approved as to form:
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JAMES F. PENMAN,
25 City Attorney
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2008-393
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This is a Settlement Agreement and Mutual Release (hereinafter the "Agreement") made this 6th
day of October 2008, by and between cross-complainant Robertson's Ready Mix, Ltd., and its
heirs, representatives, successors, assigns, general partners, subsidiaries, affiliates, successors,
and their respective officers, directors, agents, and employees (hereinafter individually and
collectively "Robertson's"), on the one hand, and cross-defendant City of San Bernardino, a
public entity and political subdivision, and its heirs, representatives, successors and assigns
(hereinafter individually and collectively "City") on the other hand.
The purpose of this Agreement is to settle (1) disputes raised in the cross-complaint filed by
Robertson's against City in San Bernardino Superior Court Case Number SCVSS 144574 (the
"Cross-Complaint") and (2) additional disputes arising out of the use of City streets by trucks
traveling to and from the Robertson's plant located in the City.
Robertson's and City shall be collectively referred to hereinafter as the "Parties."
I. RECITALS
A. The Purchase Order DisDute. In or about 2004, City entered into a purchase order with
Robettson's to obtain low-permeability landfill cover material, primarily clay (hereinafter
"Material"), to be delivered by Robertson's to the former Waterman Landfill site in the City of
San Bernardino and to be priced on a per-ton basis. Pursuant to the terms of the Parties'
agreement, Robertson's would charge, and City would pay, $4.20 per ton for Material delivered
to the Waterman Landfill site.
Robertson's had a companion agreement with Windrow Earth Transport, Inc. ("Windrow")
which stipulated that Windrow would assist with trucking the Material from its source site in
Orange County to the former Waterman Landfill site. Robertson's provided the Material, and
Windrow transported the same, from approximately December 2004 through April 2005.
While City paid for some of the Material, a dispute over the amount of Material actually
delivered to the former Waterman Landfill site developed between the Parties. The dispute over
the quantity of Material delivered, and consequently the amount owed by City to Robertson's, is
the crux of the Cross-Complaint.
B. The Action. On or about December 4, 2006, Windrow, as plaintiff, filed an action styled
Windrow Earth Transport. Inc. v. Robertson's Readv Mix, [sic], San Bernardino Superior Court
Case Number SCVSS 144574, against Robertson's, as defendant, herein. In that action,
Windrow alleged Robertson's failure to pay in full for its trucking services for transporting the
landfill cover material to the former Waterman Landfill. That case is hereinafter known as the
"Complaint." Windrow and Robertson's settled the dispute alleged in the Complaint in August
2007, and Windrow dismissed the Complaint with prejudice.
2008-393
On or about February 15, 2007, prior to the claims in the Complaint being settled, Robertson's
filed the Cross-Complaint in the Action against City, alleging City failed to pay for all tonnage
of landfill cover material it provided at the landfill site. This Agreement is intended to settle the
issues raised in the Cross-Complaint.
C. Settlement of The Action. Robertson's and Windrow settled their dispute in August
2007 and Windrow dismissed the Complaint. Upon execution of this Agreement and receipt of
the monetary consideration described in ~ II(A)(i) below, Robertson's will dismiss the Cross-
Complaint with prejudice.
D. The Truck Routine Dispute. Pursuant to a conditional use permit (hereinafter "CUP")
previously granted to Robertson's by City, Robertson's operates a plant within the City for the
production of ready-mix concrete (the "Plant"), located at 1955 West Ninth Street, San
Bernardino, California. Pursuant to the terms of the CUP, Robertson's operates commercial
trucks to transport material to and from the Plant on a daily basis. Commercial trucks that are
not operated or controlled by Robertson's also transport material to and from the Plant from time
to time. The trucks travel, in part, on public surface streets located within, and maintained by,
City.
City has received complaints from its citizens about the increasing presence of commercial trucks
on residential streets in the general vicinity of the Plant. Robertson's and City wish, in this
Agreement, to agree on a routing plan for commercial trucks traveling to and from the Plant on
City streets that will minimize truck traffic on certain streets at certain times of day while not
unfairly impairing the business operations of Robertson's or placing it at a competitive
disadvantage.
E. Scope of This Aereement. The Parties hereto agree to resolve, by this Agreement, the
following: (a) the issue of payment for disputed amounts of Material delivered to the former
Waterman Landfill site; and (b) issues pertaining to trucking routes through the City.
F. Resolution of Dispute. The Parties, having certain disputes and claims betwcen them,
now desire to settle, compromise and resolve their differences.
G. Effective Date. This Agreement contemplates global resolution of the issues raised in
the Cross-Complaint and the truck routing dispute. The Agreement will become effective upon
San Bernardino Common Council approval and receipt of the monetary consideration set forth in
section II.A, below, which shall be the "Effective Date."
II. AGREEMENT
A. Consideration. As consideration for the foregoing recitals and the promises, conditions
and covenants hereinafter set forth, City agrees to pay Robertson's a total lump sum of one
hundred thousand dollars ($100,000.00) within fifteen (15) days of the San Bernardino Common
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Council's formal approval of this Agreement. The Parties understand that San Bernardino
Common Council formal approval is required before the Agreement can be fully executed.
Within five (5) business days ofreceipt of the consideration described above, Robertson's agrees
to direct its attorneys to dismiss with prejudice the Cross-Complaint.
B. Additional Consideration - Truck Routin!! Plan. As additional consideration for the
payment by the City of the sum set forth in section II.A of this Agreement, and based on the
recitals above, Robertson's agrees, for the duration of the CUP:
1. General Route Restrictions. Commercial trucks operated by Robertson's or
otherwise subject to its reasonable control shall not travel within the City on California Street
between Baseline Street to the south and Interstate 2 I 0 to the north, from Monday through and
including Friday, between 7:00 and 8:50 a.m. and between 2:15 and 3:45 p.m during days on
which the schools are in session. These time restrictions are intended to coincide with the times
of day during which the greatest numbers of students travel to or from Rio Vista Elementary
School, 1451 California Street, and Arroyo Valley High School, 1881 West Base Line.
2. Alternate Route. Except as provided in section ILBA, below, commercial
trucks operated by Robertson's or otherwise subject to its reasonable control that are traveling
north or south between Interstate 210 and the Plant during the times of day set forth in section
II.B.I, above, shall in lieu of traveling on California Street use the following route (the
"Alternate Route"):
(a) If traveling south, exit Interstate 210 west of the City at Riverside Avenue,
proceed south on Riverside Avenue and enter the City on Baseline Road/Baseline
Street from the west.
(b) If traveling north, exit the City to the west on Baseline Road/Baseline Street to
Riverside A venue, proceed north on Riverside Avenue to Interstate 210.
3. Notification and Compliance. Robertson's agrees to use reasonable commercial
efforts to provide the operators oftrucks transporting material to or from the Plant with notice of
the route restrictions set forth in section II.B.! and the Alternate Route set forth in section II.B 2
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and the fact that Robertson's has legally obligated itselfto comply with those provisions.
Robertson's shall do so by posting a notice of the route restrictions and the Alternate Route at the
site ofthe Plant in one or more conspicuous locations, so as to increase the likelihood that all
truck operators entering or leaving the Plant are notified of them. Notwithstanding the foregoing,
Robertson's cannot be held responsible for trucks owned by others, who, having been provided
with notice of the restrictions in sections II.B.I and II.B.2, in the manner set forth herein,
nevertheless fail to abide by such restrictions.
4. Exceptions. If, due to road closure, inclement weather, traffic accidents, or other
causes not reasonably within the control of Robertson's, the Alternate Route becomes
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temporarily unusable during the times of day set forth in section II.B.l, above, a different route
may be used until the Alternate Route becomes usable again. However, any other route used
shall in any event avoid California Street and Medical Center Drive, and the area between them,
from Interstate 210 on the north to Baseline Street on the south.
5. Redeshmation/Expansion of Alternate Route. If, after the execution of this
Agreement, Robertson's determines that there exists an alternative route to the use of California
Street for travel between Interstate 210 and Baseline Street that is better suited to its
transportation needs than is the Alternate Route, Robertson's may propose to the City Engineer
that the alternative route be designated as the Alternate Route, or that the Alternate Route be
expanded to include the alternative route, for purposes of this Agreement. The City Engineer
shall review the proposal and report his or her recommendations to the Common Council, which
will decide the matter. The Council shall not unreasonably withhold or delay its agreement to the
proposed redesignation or expansion of the Alternate Route. In determining whether the
proposed redesignation or expansion is reasonable, the City Engineer and the Council shall
consider such factors as the proximity of the proposed route to residences and schools, the traffic
capacity of the proposed route, and the existing volume oftraffic on the proposed route.
6. Enforcement. City will use its best efforts to require other persons or entities
operating commercial trucks comparable to those operated by Robertson's to observe the same
restrictions on the use of California Street as Robertson's agrees to observe under section II.B.l,
above, by doing the following:
(a) Proposing for enactment by the Common Council of the City of San Bernardino
an ordinance prohibiting commercial trucks comparable to those operated by
Robertson's from using California Street during the times set forth in section
II.B.l, above.
(b) If such an ordinance is enacted, posting signs at appropriate locations to notify
commercial truck operators of the restrictions on the use of California Street by
commercial trucks.
(c) If such an ordinance is enacted, issuing citations to, and imposing fines on,
persons or entities that fail to comply with the posted restrictions.
C. Mutual Release. In consideration of the above payment and additional consideration,
each Party to this Agreement, for its past and present owners, parent corporations, subsidiaries,
partners, shareholders, directors, officers, employees, agents, representatives, successors,
predecessors, insurers, attorneys, affiliated entities, principals, and the successors and assigns of
each of them, hereby fully releases and forever discharges each other Party to this Agreement and
its past and present owners, parent corporations, subsidiaries, partners, shareholders, directors,
officers, employees, agents, representatives, successors, predecessors, insurers, attorneys,
affiliated entities, principals, and the successors and assigns of each of them of and from any and
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all action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, claims, counter claims, liabilities,
obligations and demands whatsoever, in law or in equity, each party to this Agreement ever had,
now has or which any personal representative, successor, heir or assign of any ofthem, hereafter
can, shall or may have, whether known or unknown, suspected or unsuspected, and however
denominated or described, against any of the Parties to this Agreement, and each of them, arising
from, relating to or any way connected with the Cross-Complaint (and their relationship with any
party to this Agreement) whether or not asserted in the Action, the Cross-Complaint, or
otherwise.
D. General Release Waiver. The parties hereto, and each of them, expressly waive and
relinquish all rights and benefits afforded by section 1542 of the California Civil Code as it
relates to the Cross-Complaint. California Civil Code section 1542 provides as follows:
A general release does not extend to claims which the creditor does not know
or suspect to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or her
settlement with the debtor.
Thus the parties to this Agreement, and each of them, acknowledge that they understand the
terms of section 1542 and recognize that they may discover facts or claims in addition to or
different from those presently known or believed to be known at the time of execution of this
Agreement, and that this Agreement provides for the extinguishment of any such claims, as
encompassed by this Agreement.
E. Additional Provisions.
1. Assl!mment. Each party warrants that it and its affiliated entities own the claims
fully released herein and have not assigned or transferred any part of said claims to any other
person or entity. Each party further represents and warrants that the person signing this
Agreement has the authority to sign this Agreement on its behalf.
2. Attornev's Fees and Costs. The Parties agree that each party to this Agreement
shall bear its own costs and attorney's fees incurred in connection with The Action, the
Cross-Complaint, and preparation of this Agreement.
3. Denial of Liabilitv. Robertson's continues to deny liability, negligence, breach
of contract, misconduct or wrongdoing of any kind, character, or nature whatsoever. City
continues to deny liability, negligence, breach of contract, misconduct or wrongdoing of any
kind, character, or nature whatsoever. The consideration given by City in return for the truck
rerouting agreement described hereinabove is solely in compromise of the disputed claims.
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4. No Reoresentation. No party or anyone on any party's behalf has made any
representation of fact, opinion, or promise to any other party to induce this compromise, except
those representations specifically contained in this Agreement.
5. Knowledl!e bv the Parties. The Parties to this Agreement, and each of them, are
represented by counsel and make this compromise with full knowledge of the facts and execute
and deliver this Agreement being fully informed as to its terms and contents.
6. Enforcement of Al!reement. Should any party hereto bring an action or
proceeding for the purpose of enforcing or preventing the breach of any provision of this
Agreement, then, in such an event, the prevailing party shall be entitled to be reimbursed by the
losing party for all costs and expenses incurred as a result thereof, including, but not limited to,
reasonable attorney's fees. The costs, salaries, and expenses of the City Attorney of City and
members of his office shall be considered "attorney's fees" for purposes of this section.
7. Ambil!nities. The Parties to this Agreement, and each of them, have had an
opportunity to review and revise this Agreement, and the normal rule of construction to the effect
that any ambiguities in this Agreement arc to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement.
8. Caotions and Headin'ls. In this Agreement, the captions or headings of
paragraphs and subparagraphs are inserted for convenience, reference, and identification
purposes only, and shall neither control, define, limit nor affect any provisions of this Agreement.
9. Waiver and Amendment. No breach of any provision hereof may be waived
unless in writing. Waiver of anyone breach shall not be deemed to be a waiver of any other
breach of the same or any other provision hereof. This Agreement may be amended only by a
written agreement executed by the parties to this Agreement or parties in interest at the time of
the modification. No amendment or modification of this Agreement shall bind City unless the
amendment or modification is formally approved by City's Common Council prior to execution.
10. Entire Al!reement. This Agreement constitutes the final and entire agreement
between the Parties to this Agreement, and each of them, pertaining to the subject matter hereof
and supersedes all prior and contemporaneous negotiations, discussions, agreements, and
understandings of the Parties, whether oral or written, with respect to such subject matter.
11. Governinl! Law and Jurisdiction. This Agreement shall be interpreted under
and pursuant to the law of the State of California. If any provision, or any part of any provision,
of this Agreement shall for any reason be held to be invalid, unenforceable or contrary to public
policy or any law, then the remainder of this Agreement shall not be affected thereby.
12. Counteroarts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which together constitute one and the same
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instrument.
WHEREFORE, the Parties hereto, and each of them, intending to be bound by this
Agreement have caused this Agreement to be executed as of the date first written above.
Authorized Agent
Robertson's Ready Mix, Ltd.
Patrick J. Morris, Mayor
City of San Bernardino
APPROVED AS TO FORM:
LAW OFFICES OF ROBERT M. BINAM
By:
Stephen P. Bergen
Attorneys for Robertson's Ready Mix, Ltd.
?~
sF. Pemnan, City Attorney
of San Bernardino
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