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2400 - Los Angeles County Flood Control District - Tolling AgreementAMENDMENT TO TOLLING AGREEMENT This Amendment to Tolling Agreement ("Amendment') is entered into by and between (a) the County of Los Angeles ( "County") and the Los Angeles County Flood Control District ("District ") and (b) the City of Rosemead ( "City") (all collectively referred to herein as the "Parties" and individually as "Party') and is effective as of March 1, 2011. WHEREAS, the County and District have tiled with the City administrative claims (the "County's and District's Administrative Claims "); WHEREAS, the Parties entered into a Tolling Agreement on or about February 9, 2010 ("Tolling Agreement'), extending the time for the County and the District to bring an action against the City, which Tolling Agreement expires on March I2, 2011; WHEREAS, the Parties mutually wish to amend the Tolling Agreement to further extend the time within which the County and the District must bring an action against the City, such that the tolling period expires on March 12,2013; NOW, THEREFORE, the Parties agree as follows: I. Paragraph I of the Tolling Agreement is hereby amended to provide that the Tolling Period (as defined in Paragraph 1 of the Tolling Agreement) is hereby tolled and extended from March 12, 2011 through March 12, 2013 or until this Agreement is terminated, whichever date comes first. 2. All other provisions of the Tolling Agreement remain in full force and effect. 3. The undersigned represent that they have the authority to sign on behalf of, and to bind to this Amendment, the entities set forth below. -1- 4. This Amendment and the Tolling Agreement shall constitute the entire agreement of the Parties with respect to the subject matter thereof and may not be modified except in a writing signed by the Parties. S. This Amendment may be signed in counterparts, and each counterpart shall be deemed an original, but all of which shall constitute one and the same instrument. FOR THE COUNTY AND DISTRICT: Dated: rAk Z , 2011 ANDREA SHERIDAN ORDIN, County Counsel JUDITH A. FRIES, Principal Deputy County Counsel LAURIE E. DODS, Deputy County Counsel 6,rQ0 dith A. Fries FOR THE CITY OF ROSENIEAD: Dated:J 2011 -2- ROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: FEBRUARY 9, 2010 SUBJECT: TOLLING AGREEMENT WITH COUNTY OF LOS ANGELES SUMMARY Last year, the County of Los Angeles presented a claim to the City seeking indemnification and contribution from the City should the County be found liable in the case filed against the County by the National Resources Defense Council (NRDC) and the Santa Monica Baykeeper under the Clean Water Act (and related statutes). The County filed similar claims against approximately 58 other cities, as well as a number of other public entities. No action was taken on the claim because the City does not have an ordinance requiring public entities to file claims with the City. The County now believes they are up against a deadline to add parties to the NRDC lawsuit, which is scheduled to be tried in June of this year. As an alternative to bringing Rosemead into the litigation at this point in time, the County has offered the attached tolling agreement, which would preserve the County's rights to pursue the City for indemnification or contribution at a later time, should the County ultimately lose the NRDC lawsuit. If the County prevails, there will be no need for the County to litigate contribution against the City of Rosemead, and consequently, no need for the City of Rosemead to incur any litigation expenses. If the County loses, the County may then need to sue Rosemead to pursue indemnification or contribution, and the City will then incur litigation expenses at that time. At this time the City Attorney and staff are recommending that the City Council enter into the tolling agreement. At this juncture, a tolling agreement is the most cost effective alternative. The agreement is mutual (also tolling claims that the City may have against the County arising from the same lawsuit and facts). APPROVED FOR CITY COUNCIL AGENDA: ITEM NUMBER: 1 \ City Council Meeting February 9, 2010 Page 2 of 2 The advantage of the tolling agreement is that it delays the potentially adverse relationship between the cities and the County over liability for any exceedances of water quality standards in stormwater.: Presumably, the delay frees the County to defend the lawsuit against it without distraction, which the County has committed that it will do. The disadvantage of the tolling agreement is that it gives the County the opportunity to develop claims against the cities. The disadvantage to not signing the tolling agreement is that the County may bring the cities into the current lawsuit, which will be costly to defend and bears all of the risks inherent in litigation. Staff Recommendation Staff recommends that the City Council approve the proposed tolling agreement and authorize the Mayor to execute the agreement on behalf of the City. FISCAL IMPACT The tolling agreement will eliminate any immediate need to incur legal fees either defending or prosecuting claims between the City and the County over causes of action that arise (or may arise) from the NRDC/Santa Monica Baykeeper's dispute with the County over alleged exceedances of water quality standards and other alleged violations of the Clean Water Act and the California Ocean Plan. If the County is successful in its defense of the action, this tolling agreement will have eliminated any fiscal impact to the City because the tolled claims will be moot; if the County is unsuccessful, this tolling agreement will delay the cost of defense and any potential liability for indemnification or contribution. At this time, the potential fiscal impact is too speculative to estimate. PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Prepared by: JOSEPH ONTES,ESQ. CITY ATTORNEY Attachment A - Proposed Tolling Agreement TOLLING AGREEMENT This Tolling Agreement ("Agreement") is entered into by and between (a) the County of Los Angeles ("County") and the Los Angeles County Flood Control District ("District") and (b) the City of Rosemead ("City") (all collectively referred to herein as the "Parties" and individually as "Party") and is effective as of the date signed by the City below. WHEREAS, the County and District have filed with the City administrative claims (the "County's and District's Administrative Claims"); WHEREAS, the County's and District's Administrative Claims allege that the City is liable to the County and the District, in whole or in part, for any costs, expenses, or other relief that might be imposed on the County or the District in a case currently pending in the United States District Court for the Central District of California captioned Natural Resources Defense Council, Inc. et al. v. County of Los Angeles et al., Case No. CV 08-1467-AHM (PLAx) (the "Lawsuit"); WHEREAS, Code of Civil Procedure section 360.5 provides that parties may extend by written agreement a limitation period established in Title 2 of Part 2 of the Code of Civil Procedure; WHEREAS, Code of Civil Procedure section 342, contained in Title 2 of Part 2 of the Code of Civil Procedure, referring to Government Code section 945.6, provides that the time for the County and the District to bring an action against the City for causes of action for which a claim is required to be presented is two years from the accrual of the cause of action, which is on or about March 12, 2010; WHEREAS, the Parties mutually wish to extend the time within which the County and the District must bring an action against the City, and vice versa, such that the time is extended to and including March 12, 2011; NOW, THEREFORE, the Parties agree as follows: 1. The period during which the County and the District must bring an action against the City on the County's and District's Administrative Claims and the period during which the City must bring an action or claim against the County and/or District for causes of action arising from the County's and District's Administrative Claims or the Lawsuit are hereby tolled and extended as of the effective date of this Agreement through March 12, 2011 or until this Agreement is terminated, whichever date comes first (the "Tolling Period"). 2. The Parties further agree that there shall be a suspension of any and all applicable statutory limitations and non-statutory periods, including, without limitation, the equitable doctrine of laches, which may otherwise apply to the County's and District's Administrative Claims, as well as any defenses thereto, during the Tolling Period. 3. Nothing in this Agreement shall revive any claim which, as of the commencement of the Tolling Period, would have been barred by any applicable statute of limitations. 4. This Agreement may be terminated by the City, the County and/or the District by giving thirty (30) days prior written notice in accordance with the notice provisions in Paragraph 6 hereof. Such notice shall specify as to which Party or Parties it is directed. Such notice will terminate this Agreement only with respect to the Party or Parties to which it is directed and the Party or Parties from which it is given. 5. The entry into this Agreement by the Parties shall not be construed to represent any admission by any Party with respect to the subject or sufficiency of the County's and District's Administrative Claims or any defenses thereto, including but not limited to any allegation in the County's and District's Administrative Claims or any allegation in Natural Resources Defense Council, Inc. et al. v. County of Los Angeles et al., Case No. CV 08-1467-AHM (PLAx). 6. Any notices required to be made under this Agreement shall be made in writing to the address of the appropriate Party as set forth below. All such notices shall be deemed to have been duly given and received upon first-class U.S. mailing, facsimile, electronic mail or delivery by courier or personal delivery service. If a Party delivers a notice by means of facsimile transmission or electronic mail, it must also send a copy of that notice by one of the other means specified above. Parties may alter or modify their notice address by delivery of written notice pursuant to the terms of this Agreement. To the County and the District: Judith A. Fries, Esq. Principal Deputy County Counsel Office of the County Counsel 648 Kenneth Hahn Hall of Administration 500 W. Temple Street, Room 653 Los Angeles, California 90012 Phone: (213) 974-1923 Fax: (213) 687-7337 E-mail: jfries@counsel.lacounty.gov To the City: Joseph Montes, Esq. Burke, Williams & Sorensen, LLP 444 South Flower Street, Suite 2400 Los Angeles, CA 90071 Phone: (213) 236-2736 Fax: (213) 236-2700 E-mail: jmontes@bwslaw.com 7. The undersigned represent that they have the authority to sign on behalf of, and to bind to this Agreement, the entities set forth below. 8. This Agreement shall constitute the entire agreement of the Parties with respect to the subject matter hereof and may.not be modified except in ,a writing signed by the Parties. 9. This Agreement may be signed in counterparts, and each counterpart shall be deemed an original, but all of which shall constitute one and the same instrument. FOR THE COUNTY AND DISTRICT: Dated: 12010 ROBERT E. KALUNIAN, Acting County Counsel JUDITH A. FRIES, Principal Deputy County Counsel LAURIE E. DODS, Deputy County Counsel Judith A. Fries FOR THE CITY OF ROSEMEAD: Dated: FEBRUARY 9 2010 C Margaret Clark, Mayor