CC Resolution No. 8946
.,
RESOLUTION NO. 8946
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING EXECUTION OF FIRST
AMENDMENT TO COST SHARING AGREEMENT BETWEEN
THE CITIES OF CAMPBELL, CUPERTINO, LOS ALTOS,
MILPIT AS, MONTE SERENO, MOUNTAIN VIEW, PALO ALTO,
SANTA CLARA, SARATOGA AND SUNNYVALE AND THE
TOWNS OF LOS ALTOS HILLS AND LOS GATOS TO RETAIN
LEGAL COUNSEL
WHEREAS, on August 20, 1992, the cities of Campbell, Cupertino, Los Altos,
Milpitas, Monte Sereno, Mountain View, Palo Alto, Santa Clara, Saratoga, and Sunnyvale
and the towns of Los Altos Hills and Los Gatos entered into an agreement to retain
counsel to represent their interests in contesting the validity of the city of San lose's
disposal facility ordinance and share in the costs of representation, Shute, Mihaly and
Weinberger were retained as counsel, and a budget of $50,000 was established; and
WHEREAS, the original budget has been exceeded and the parties wish to
increase the budget to $130,000;
NOW, THEREFORE, BE IT RESOLVED that said agreement is hereby amended
as shown in First Amendment to Agreement attached hereto.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 17th day of AUi/;ust ,1993, by the following vote:
VOTE MEMBERS QE. THE CITY COUNCIL
AYES:
NOES:
ABSENT:
ABSTAIN:
Dean, Goldman, Koppel, Sorensen, Szabo
None
None
None
ATIEST:
APPROVED:
/s/ Kim M. Smith
City Clerk
/ s / Nick Szabo
Mayor, City of Cupertino
FIRST AMENDMENT TO AGREEMENT
This First Amendment to Agreement, dated, for
convenience, , 1993, is made and entered into
by and between the cities of Campbell, Cupertino, Los Altos,
Milpitas, Monte Sereno, Mountain View, Palo Alto, Santa Clara,
Saratoga, and Sunnyvale and the towns of Los Altos Hills and Los
Gatos ("parties").
RECITALS
1. On August 20, 1992, the parties entered into an
agreement to retain counsel to represent their interests in
contesting the validity of the city of San Jose's disposal facility
ordinance ("Ordinance") and share in the costs of representation.
Shute, Mihaly and Weinberger were retained as counsel, and a budget
of $50,000 was established.
2. An action in the Superior Court of the State of
California entitled Citv of CUDertino. et al. vs. Citv of San Jose.
et al. was filed. A request for issuance of a writ of mandate
based on alleged CEQA violations was denied, and an allegation that
San Jose did not act in accordance with the regional welfare was
rejected. Although the trial court overruled the defendants'
demurrer to an allegation that the Ordinance was preempted by state
law, the parties have elected to drop this claim in light of the
recent decision in City of Dublin et al. v. County of Alameda et
aI., pending the outcome of the City of Dublin's petition for
review before the California Supreme Court. The parties wish to
appeal the decision of the trial court.
3. The original budget has been exceeded, and the
parties wish to ratify the additional costs incurred to date. In
anticipation of the additional costs to be incurred to resolve the
equal protection claim and to file an appeal, the parties wish to
increase the budget to $130,000.
In consideration of the following covenants, terms and
conditions, the parties agree:
SECTION 1. Section 2.1 of the Agreement is hereby
amended to read as follows:
"2.1 The' parties agree that the total costs of
Counsel's services will be the actual costs to be shared
by the parties less any costs which are incurred by
parties at their own expense. This amount shall not
exceed $130,000, unless the costs in excess of $130,000
are authorized as set forth in this Agreement. Such
costs shall include the costs of services performed by
Counsel's attorneys at established hourly billing rates,
fees and costs of expert witnesses, and such other
administrative costs as set forth in the retainer
agreement, but shall exclude any costs attributable to
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communications with Counsel initiated by a party. Costs
in excess of $130,000 shall not be authorized until a
vote of a majority of the parties has been obtained. All
costs which have been incurred in excess of $50,000 are
hereby ratified by the parties. The City Attorney shall
promptly call a meeting of the parties' city attorneys
when the City Attorney has determined or is advised that
Counsel has incurred approximately $100,000 in costs and
charges and when the City Attorney has determined or is
advised by Counsel that the costs of litigation are
likely to exceed $130,000. At such time, the City
Attorney shall inquire of Counsel whether it is
reasonably foreseeable that Counsel's costs and charges
will exceed $130,000."
SECTION 2. Section 2.2 of the Agreement is hereby
amended to read as follows:
"2.2 The parties agree to share the costs of
litigation, including the costs of trial and appeal, in
proportion to their respective share of the total tonnage of
solid waste delivered by the parties' franchised haulers to
San Jose landfill sites during calendar year 1991. The
percentage share of the costs of each party shall be
established, as follows:
Name of Partv Percentaqe Share
City of Campbell 7.13 %-
City of Cupertino 6.62 %-
City of Los Altos 5.07 %-
Town of Los Altos Hills 0.61 %-
Town of Los Gatos 6.44 %-
City of Milpitas 9.07 %-
City of Monte Sereno 0.51 %-
City of Mountain View 12.59 %-
City of Palo Alto 15.92 %-
City of Santa Clara 9.82 %-
City of Saratoga 4.76 %-
City of Sunnyvale 21. 46 %-
TOTAL: 100.00 %-
Except as provided in Section 2.8, each party
shall bear its proportionate share of Counsel's fees and
expenses incurred under Section 2.1 up to $130,000,
whether or not a party withdraws from participation in
this Agreement prior to the expenditure of $130,000 in
costs."
SECTION 3. Section 2.3 of the Agreement is hereby
amended to read as follows:
"2.3 The parties further agree to share in the
costs of any other expenditures reasonably and necessarily
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incurred by any party to this Agreement in anticipation of
litigation in proportion to their percentage share as set
forth in Section 2.2, whether or not a party withdraws from
participation in this Agreement prior to the expenditure of
$130,000 in costs incurred under Section 2.1. For the
purposes of this Section 2.3, the parties understand and agree
that no party other than the City of Palo Alto shall be
reimbursed for additional costs and expenses as provided
herein:
a. City of Palo Alto not to exceed $1,086.55 [for
court reporter transcripts of San Jose Planning
Commission ($741.60) and San Jose City Council
($294.95) hearings on negative declaration and tax
ordinance, respectively] plus an amount not to
exceed $50.00 for photocopying costs associated
with the production of documents by the City of San
Jose in response to a California Public Records Act
request submitted by the City of Palo Alto.
The obligation to pay any unpaid reimbursements shall
survive the termination of this Agreement."
SECTION 4. Section 2.7 of the Agreement is hereby
amended to read as follows:
"2.7 In the event a party withdraws from
participation in this Agreement after $130,000 in costs
have been incurred, that party shall be obligated to pay
for its proportionate share of the costs in excess of
$130,000 incurred to the date of withdrawal and give to
the City Attorney not less than three (3) days' notice of
that party's intent to withdraw from participation in any
action initiated by Counsel. The effective date of a
party's withdrawal shall occur on the date a court
approves of such party's withdrawal as a party to any
legal or equitable action initiated by Counsel in behalf
of the parties. Costs in excess of $130,000 shall be
shared by the remaining parties in accordance with each
remaining party's respective share of the total tonnage
of solid waste delivered by the remaining parties to San
Jose landfill sites during calendar year 1991.
By way .of illustration of the foregoing
paragraph's provisions on the calculation of costs,
assume Counsel's final costs are in excess of $130,000,
and the final cost is $150,000, the parties are A, B, C
and D and their franchise hauled tonnage for calendar
year 1991 are 10, 20, 30 and 40 tons, respectively, and
party A withdraws after Counsel incurs $135,000 in legal
costs and party B withdraws after Counsel incurs
$140,000 in costs. Counsel's costs in excess of
$130,000 will be shared by the parties A, B, C and D as
follows:
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A - 10/100 x ($135,000 - $130,000) = $500.
B - 20/100 X ($135,000 - $130,000) + 20/90 x ($140,000 _
$135,000) = $2,111.11.
C - 30/100 x ($135,000 - $130,000) + 30/90 x ($140,000 _
$135,000) + 30/70 x ($150,000 - $140,000) = $7,452.38.
D - 40/100 x ($135,000 - $130,000) + 40/90 X ($140,000 _
$135,000) + 40/70 X ($150,000 - $140,000) = $9,936.51."
SECTION 5. Section 2.8 of the Agreement is hereby
amended to read as follows:
"2.8 Notwithstanding any other provision
contained in this Agreement, in no event shall the total
amount required to be paid by the City of Monte Sereno
for its share of costs, including interest, exceed the
amount of one thousand dollars ($1,000), and the total
amount required to be paid by the City of Saratoga under
this Agreement for its share of costs, including
interest, shall not exceed four thousand seven hundred
sixty dollars ($4,760).
In the event that the amount of a party's share
of the total costs established under Section 2.2 would
exceed that party's share of costs subject to limitation
under Section 2.8, e~ch of the parties other than the
party whose costs are subject to limitation agrees to pay
a proportionate share of that party's share of costs,
including interest, in excess of the amount of the
limitation on costs as follows:
The excess amount of costs of a party whose
share of costs, including interest, is subject to
limitation shall be multiplied by a fraction, the
numerator of which is any other party's percentage share
established under Section 2.2 and the denominator of
which is the difference between one hundred percent and
the percentage share established under Section 2.2 of the
party whose share of costs, including interest, is
subject to limitation.
By way of illustration of the foregoing
paragraph's provisions, assuming that the total costs of
litigation is $130,000 and the excess amount of costs to
be shared by all parties other than Saratoga is $1,428
($6,188 or 4.75% of $130,000 less $4,760), Palo Alto's
share of $1,428 will be $238.70 ($1,428 x 15.92/100 _
4.76) .
SECTION 6. Section 5.4 of the Agreement is hereby
amended to read as follows:
"5.4 This Agreement is intended to cover the
payment of costs of legal representation of the parties
in a determination of whether the adoption of the
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ordinance was in compliance with applicable law through
the completion of trial, if any, or other final
resolution of such determination and a final deter-
mination on appeal.
Executed by the parties on the date first above stated.
CITY OF CAMPBELL
APPROVED AS TO FORM:
By:
ATTEST:
By:
By:
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CITY OF CUPERTINO
By:
ATTEST:
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By:
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CITY OF LOS ALTOS
By:
ATTEST:
By:
APPROVED AS TO FORM:
By:
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TOWN OF LOS ALTOS HILLS
By:
ATTEST:
By:
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APPROVED AS TO FORM:
By:
8
TOWN OF LOS GATOS
By:
ATTEST:
By:
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APPROVED AS TO FORM:
By:
9
APPROVED AS TO FORM:
By:
CITY OF MILPITAS
By:
ATTEST:
By:
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APPROVED AS TO FORM:
By:
CITY OF MONTE SERENO
By:
ATTEST:
By:
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CITY OF MOUNTAIN VIEW
By:
ATTEST:
By:
APPROVED AS TO FORM:
By:
,?
APPROVED AS TO FORM:
By:
CITY OF MOUNTAIN VIEW
By:
ATTEST:
By:
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APPROVED AS TO FORM:
By:
CITY OF PALO ALTO
By:
ATTEST:
By:
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CITY OF SANTA CLARA
By:
ATTEST:
By:
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APPROVED AS TO FORM:
By:
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,
CITY OF SARATOGA
By:
ATTEST:
By:
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APPROVED AS TO FORM:
By: