HomeMy WebLinkAbout92-022 Disposal Facility Tax Cost Sharing Between Various Cities 92-022 DISPOSAL FACILITY TAX COST
SHARING BETWEEN VARIOUS CITIFS
FIRST AMENDMENT TO AGREE CENT
This First Amendment to Agreeme:lt , dated, for
convenience, _ Mav 10 _ 1993 , is made and entered °into
by and between the cities of Campbell, Cuperti.no, 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 cod,.nsel , and a budget
of $50, 000 was established .
2 . An action in the Superior Court of the State of
California entitled City of Cupertino, et al . vs. City 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 overruied the defendants'
demurrer to an allegat�cn that the ordinance was preempted by state
law, the parties have elected to drop thi3 claim in light of the
recent decision in City of Dublin et al . v. County of _Alameda et
al . , 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 Lhe 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:
112 . 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 $1:;0, 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
1
930510%yn 0070355
ti
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:
112 .2 The parties agree to share the costs off
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 Part v Percentage 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 1.5 .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:
112 . 3 The parties further agree to share in the
costs of any other expenditures .reasonably and necessarily
2
9305104yn 0070355
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:
112 . 7 In the evert 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 :
3
930510sy"0070355
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 , 11 . 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 - 40/1.00 x ($135, 000 - $130, 000) + 40/90 x ($140, 000 -
$135, 000) + 40/70 x ($150, 000 - $140, 000) _ $9, 936 .51 . 11
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 noIC 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, each 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 ($1, 428 x 1.5. 92/1.00 -
4 . 76) .
SECTION 6 . Section 5.4 of the Agreement is hereby
amended to read as follows :
115 .4 This Agreement is intended to cover the
payment of costs of legal representation of the parties
in a determination of whether the adoption of the
4
930510xyn 0070355
ordinance was in compliance with applicable law through
the completion of trial, if any, or other final
resolution of such determination and a final deter-
mination on appeal .
Executed by the parties on the date first above stated.
CITY OF CAMPBELL• APPROVE TO FORM:
ATTEST: /)
By:
5
930510 rnyn 0070355
CITY OF CUPERTINO APPROVED AS ; FORJlY ,j J
ATTEST:
By. n�� >
6
930802 syn 0070355
CITY OF L ALTOS APPROVED AS TO FORM:
By:
ATTEST:
7
13 1021 %yu 0070355
e
TOWN OF LOS ALTOS HILLS] APPROVED AS TO FORM:
BY �.cx M_. l `^ C�� ram. By:
ATTE (�
By:
930510nyn 0070355
TOWN OF LOS G TOS APPROVED AS Ti FORM:
ATTEST:
By:
9
930510syo 0070355
CITY OF MITPITAS APPROVED AS TO FORM:
By: By:
ATTEST:
By:
10
930614syn 001,0355
CITY OF MONTE SERENO APPROV AS
By• BY:
ATTEST:
I1
9305104yn 0070355
CITY OF MOUM `TN VIEW ` APPROVED
By. By: / r�7 t-------L
�
ATTEST: 6f r
By: A.-
1?.
930510syn 0070355
CITY OF ,$ALO ALTO APPROV F M:
By: _ By:
ATTES�:
By: -
13
930510 syn 0070355
CITY OF SANTA CLARA APPROVED AS TO FORM:
� A B '
By: 1
ATTE JT
By: C t oc� n
1
14
930510 eyn 0070355
CITY OF PAR.ATOGA APPROVED AS TO FORM;
BY: ✓ By: A
,
ATTEST:
By: _ C � t
15
930510eyn 0070355
CITY OF S YJQA� APPROVED AS TO FORM:
ATTEST:
By:
16
930510 eyn 0070355
City of Palo Alto
Offireof t1w0tyAttorw y
CONFIDENTIAL
ATTORNEY-CLIENT PRIVILEGE
3OINT REPRESENTATION PRIVILEGE
November 22, 1993
(VIA MAILING LIST)
ALL CITY ATTORNEYS
RE: First Amendment to Agreement
We have now received the executed signature pages from
all parties. Enclosed is a copy of the referenced amendment to the
cost sharing agreement . The original is being forwarded to the
City of Mountain View. Please call if you should have any
questions or comments.
Sincerely,
GRA4T KOLLING
Senior Asst . City Attorney
GK:syn
Enclosure
cc: June Fleming, City Manager (w/o enc. )
Bernie Strojny, Asst. City Manager (w/o enc. )
Ariel Pierre Calonne, City Attorney (w/o enc. )
P.O.Box 10250
Pa1oA1to,CA94, 3
415.329.2171
415.3N.264t3 Fax
931122xyn 0070504
MAILING LIST
William Seligmann, City Attorney Charles Killian, City Attorney
City of Campbell City of Cupertino
20380 Town Center Lane, Suite 215 1740 Technology Drive, Suite 250
Cupertino, CA 95014 San Jose, CA 95110
Robert K. Booth, Jr. , City Attorney Margaret Sloan, City Attorney
City of Los Altos Town of Los Altos Hills
Atkinson & Farasyn Jackson, Tufts, Cole & Black.
P.O. Box 279 60 S. Market St . , 10th Floor
Mountain View, CA 94042 San Jose, CA 95113
James Jackson, Acting City Attorney Dave Larsen, City Attorney
Town of Los Gatos City of Milpitas
Town Hall 455 E. Calaveras Blvd.
P.O. Box 949 Milpitas, CA 95035
Los Gatos, CA 95031
Frank Gillio, City Attorney P. Lawrence Klose, City Attorney
City of Monte Sereno City of Mountain View
435 Logan Street P.O. Box 7540
Santa Cruz, CA 95062 Mountain View, CA 94039-7540
Michael Downey, City Attorney Michael Riback, City Attorney
City of Santa Clara City of Saratoga
City Hall Meyers, Nave, Riback & Silver
1500 Warburton Avenue 777 Davis Street, Suite 300
Santa Clara, CA 95050 San Leandro, CA 94577
Valerie J. Armento, City Attorney
City of Sunnyvale
City Hall
P.O. Box 3707
Sunnyvale, CA 94088-3707
AMMIkA
0t4 of cuperti"o
10301Torre Avenue
Cupertino,CA 95014-3255
Telephone:(408)252-4505
FAX: 1408►252-0753
DEPARTMENT OF THE CITY CLERK
August 24, 1993
Grant Kolling
City of Palo Alto
P. O. Box 10250
Palo Alto, California 94303
Dear Mr. Kolling:
Enclosed is a fully executed signature page of the First Amendment to Agreement along
with a certified copy of Resolution No. 8946. This resolution was enacted by the
Cupertino City Council at their regular meeting of August 17, 1993.
If you have any questions or need additional information,please contact me.
Sincerely,
KIM SMITH
CITY CLERK
KS/cs
Qt Of PaloMt®
qIheQtyAMmwy
August 2, 1993
Charles Killian, Esq.
City Attorney
City of Cupertino
1740 Technology Drive, Suite 250
San Jose, CA 95110
RE: First Amendment to Cost Sharing Agreement
Dear Chuck:
Enclosed is another original of the referenced agreement.
I have also enclosed an original page 6 of that contract amendment
which should be executed by the authorized representatives of the
City of Cupertino and returned to me at your early convenience.
Thank you for your consideration.
Sincerely,
GRANT KOLLING
Senior Asst. City Attorney
GK:syn
Enclosure
cc: Ariel Pierre Calonne, City Attorney (w/o enc. )
P.O.Box IM%
Palo Alto,CA94303
415.329.2171
415.329.2646Fax
930802sya 0070437
FIRST AM=MEIgT TO AGRy3EMUNT
This First Amendment to Agreement, dated, for
convenience, , 1993, is made and entered into
by and between the ci+:ies 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
Gat r,,.:; ( "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 City of Cupertino, et al. vs . City 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
al . , 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:
112 . 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
costa shall include the costs of services performed by
Couns-l' 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
1
930802syn 0070355
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:
112 .2 The parties agree to share the cc-ts 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 Party Percentage Share
City of Campbell 7.13
City of Cupertino 6.62
City of Los Altos 5.07 t
Town of Los Altos Hills 0 .61
Town of Los Gatos 6 .44 g
City of Milpitas 9 . 07
City of Monte Sereno 0 .51
City of Mountain View 12 .59 0
City of Palo Alto 15 . 92 t
City of Santa Clara 9 . 82 °s
City of Saratoga 4 .76
City of Sunnyvale 21.46
TOTAL: 100. 00 t
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 kgreement is hereby
amended to read as follows:
112.3 The parties further agree to share in the
costs of any other expenditures reasonably and necessarily
2
930802 syn 0070355
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:
112 .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 TD 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:
3
930802syn 0070355
E
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. 11
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 :.)e 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, each 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 . 75u 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:
115 .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
4
2
930M syn 0070355
CITY OF CUPERTINO APPROVED AS FOR. . ,
ATTEST:
By:
6
930802syn 0070355
CITY OF LOS ALTOS APPROVED AS TO FORM:
By: By:
ATTEST:
By:
7
930W2 syn 0070355
TOWN OF LOS ALTOS HILLS APPROVED AS TO FORAM:
By: By:
ATTEST:
By:
8
930902syn 0010355
TOWN OF LOS GATOS APPROVED AS TO FORM:
By: By:
ATTEST:
By:
9
930802 syn 0070355
CITY OF MILPITAS APPROVED AS TO FORM:
By: _ By:
ATTEST:
By:
10
930802 syn 0010355
CITY OF MONTE SERENO APPROVED AS TO FORM:
By: By:
ATTEST:
By:
11
930902 syn 0070355
CITY OF MOUNTAIN VIEW APPROVED AS TO FORM:
By: By:
ATTEST:
By:
12
9308M syn 0070355
CITY OF PALO ALTO APPROVED AS TO FORD:
By: By:
ATTEST:
By:
13
930802syn 0070355
CITY OF SANTA CLARA APPROVED AS TO FORM:
By: By:
ATTEST:
By: _
14
9308M syn 0070355
CITY OF SARATOGA APPROVED AS TO FORM:
By: By: -
ATTEST:
By:
15
930802syn 0070355
CITY OF SUNNYVALE APPROVED AS TO FORM:
By: By:
ATTEST:
By:
f
16
930802 syn 0070355
4W
Cit4 Of CUPCrtia0
10300 Torre,Avenue P.7,Boa 580
Cupertino,CA 95014-3255 Cupertino,CA 95015-05,0
Tedephone: f4W)252-4505
FAX:(4081 252-0'53
September 24, 1,992
Grant Kolling, Senior Assistant City Attorney
City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
Dear Mr. Kolling:
We are enclosing to you as requested in your letter of August 28,
1992 the City of Cupertino`s fully executed signature page, along
with one (1) certified copy of Resolution No. 8742, which was enacted
by the City Council of the City of Cupertino, at their regular
meeting of Tuesday, September 8, 1992.
Sincerely,
DOROTHY OURNELIUS``
CITY CMUT
CITY OF CUPERTINO
DC/so
encl.
1'
Gt4 Of Cie i
103W Turn Awnur Y O Box S80
Cuperisno,CA 9S014-i 255 Cupertino,CA 95015-0560
relvpnonv! (408)252.4-,05
FAX ;4081;52-0-53
September 24, 1992
Mr. Larry Klose, City Attorney
City of Mountain View
P. O. Box 7540
Mountain View, CA 94039
CITY OF CUPERTM RESOLUTION NO. 8742
Dear City Attorney Klose:
We are sending to you for your files and information one (1) copy of
the Agreement by and between the City of Cupertino and 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, which has been fully executed by
City Officials.
We are also enclosing one (1) certified copy of Resolution No. 8742,
which was enacted by the City Council of the City of Cupertino, at
their .regular meeting of Tuesday, September 8, 1992.
We have sent a fully executed oopy of the Signature page to Grant
Kolling, Senior Assistant City Attorney of Palo Alto.
Sincerely,
DOROTHY OORNEL1UJ
CITY CLERK
CITY OF CUPERNNO
DC/so
encl.
RESOLUTION NO. 8742
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING EXECUTION OF COST SHARING
AGREEMENT 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 TO RETAIN LEGAL COUNSEL
WHEREAS, on June 23, 1992 the City of San Jose adopted a disposal facility tax
ordinance; and
WHEREAS, the cities of Campbell, Cupertino, Los Altos, Milpitas, Monte
Sereno, Mountain View, Palo Alto, Santa Clara, Saratoga and Sunnvyale and the towns
of Los Altos Hills and Los Gatos have separate agreements for solid waste disposal with
various landfill operators operating landfills in San Jose, and agreements require each
party to absorb any tax or tax increase levied on the landfill operator, and
WHEREAS, the parties wish to determine whether the ordinance was adopted in
compliance with applicable law, including the California Environmental Quality Act.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby authorizes the Mayor and City Clerk to execute the cost sharing
agreement to retain legal counsel and agrees to bear a proportionate share of fees and
expense as stated in Section 2.2 of said agreement, not to exceed a total for all parties as
stated in Section 2.1
AGREE
This Agreement, dated, for convenience, August 20, 1992,
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 June 23, 1992, the City of San Jose adopted a disposal
facility tax ordinance. Under the ordinance, a tax of $13 . 00 per
ton for each ton of solid waste accepted at a San Jose landfill
site is assessed on the operator of that site. A negative
declaration, which was prepared for this ordinance, became final on
June 10, 1992 .
2 . The parties to this Agreement have separate agreements
for solid waste disposal with various landfill operators operating
landfills in San Jose, and the respective agreements require each
party to absorb the costs of any tax or tax increase levied on the
landfill operator.
3 . The parties wish to determine whether the ordinance was
adopted in compliance with applicable law, including, without
limitation, the California Environmental Quality Act, and, in light
of their common interest in such determination, wish to retain
legal counsel to represent their interests in this matter and share
in the costs of such legal representation.
In consideration of the following covenants, terms and
conditions, the parties agree:
SECTYON 1 . 0, Rights and Obligations of the Parties .
1.1 The parties hereby authorize the City Attorney of
the City of Mountain View ( "City Attorney") on their behalf to
enter into an agreement for legal services ( "retainer agreement" )
with Shute, Mihaly and Weinberger, Attorneys at Law ( "Counsel") , to
undertake the legal representation of the parties to determine
whether the disposal facility tax ordinance was adopted in
compliance with applicable law, and take reasonable. and necessary
action to pursue all available rights and remedies under such terms
and conditions as may be deemed appropriate by the City Attorney.
The retainer agreement, which will be made available to all parties
by the City Attorney within thirty (30) days after the execution of
this Agreement by the parties, is set. forth in Exhibit "A. "
1.2 The City Attorney shall provide the parties with
written status reports of Counsel's actions at times as may be
established by the City Attorney or Capon request of a party. For
purposes of this Section 1 .2, any such report shall be sent to a
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Attorney shall inquire of Counsel whether it is reasonably
foreseeable that Counsel's costs and charges will exceed $50, 000.
2 .2 The parties agree to share the costs 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 Part v Percentage 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 W
City of Milpitas 9 .07
City of Monte Sereno 0.51 W
City of Mountain View 12 .59
City of Palo Alto 15.92 t
City of Santa Clara 9 .82 %
City of Saratoga 4.76 !k
City of Sunnyvale 21.46 t
TOTAL: 100.00 t
The parties shall each bear their proportionate share of
Counsel's fees and expenses incurred under Section 2 .1 up to
$50, 000, whether or not a party withdraws from participation in
this Agreement prior to the expenditure of $50, 000 in costs.
2 .3 The parties fi:rther agree to share in the costs of
any other expenditures reasonably and necessarily incurred by any
party to this Agreement in anticipation of litigation in proportion
to their percentage shay•e as set forth in Section 2 .2, whether or
not a party withdraws from participation in this Agreement prior to
the expenditure of $50, 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.
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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 ($1,000.00) .
SECTION 3 .0 Accounting and Audit.
3 .1 The City Attorney shall account for all costs and
expenditures incurred by Counsel and any other party and billed to
the City Attorney, and shall report the same to the parties at
times as may be determined by the City Attorney or upon the request
by a party through its city attorney. Each party reserves the
right to inspect and copy at its sole cost and expense any bill for
costs and any material supporting such costs, and the City Attorney
shall make the same available to any party upon request during the
regular office hours of the City Attorney.
SECTION 4.0 Indemnity.
4.1 The parties agree that each party shall protect,
defend, indemnify and hold harmless the others, their respective
council members, officers, employees, agents and representatives,
from ar..y and all liability, losses, damages, injuries, claims,
costs z.nd expenses arising in any manner from the performance or
the failure to perform, on the part of the indemnifying party, the
provisions of this Agreement.
SECTION 5.0 Miscellaneous.
5.1 This Agreement shall become effective upon its
approval by a vote of a majority of the city councils and town
councils of the parties acting through their city attorneys or
other designated representatives. This Agreement shall not
terminate until the retainer agreement for legal services with
Counsel is terminated by the City Attorney, a majority of the
parties vote to terminate this Agreement, or a final judgment is
entered in any action initiated by Counsel in behalf of the
parties, whichever first occurs.
5.2 This Agreement may be executed in any number of
counterparts, each of which shall be an original, ' but all of which,
taken together, shall constitute one and the same instrument.
5.3 This Agreement may be amended in writing upon the
vote of a majority of the parties to this Agreement acting through
their city attorneys.
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 ordinance was in compliance with
applicable law through the completion of trial, if any, or other
final resolution of such determination. No costs of appeal shall
be subject to cost-sharing under this Agreement.
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CITY OF CUPERTINO APPROVED AS TOVFORM:
By: By:
a o
ATTEST'.-
By:
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TOWN OF LOS ALTOS HILLS APPROVED AS TO FORM:
By: By:
ATTEST:
By:
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CITY OF MILPITAS APPROVED AS TO FORM:
By; By:
ATTEST:
By:
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CITY OF MOUNTAIN VIEW APPROVED AS TO FORM:
By: By:
ATTEST:
By:
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CITY OF SAN'TA CLARA APPROVED AS TO FORM:
By: By:
ATTEST:
By:
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CITY OF SUNNYVALE APPROVED AS TO FORM:
By: By
ATTEST:
By:
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Ot PAt
OFFICE OF
Ur1 I CITY A■® ■ORNEY
• \�• FAX No.
t,� (415) 329.2171 CITY OF PALO ALTO (415) 329.2646
P O BOX M250 250 FU1As�lTON AVENUE
PALO ALTO, CALIFORMA 94303 PALO A110, C. WORNM 94301
CONFIDENTIAL
ATTORNEY-CLIENT PRIVILEGE
JOINT REPRESENTATION PRIVILEGE
August 28, 1992
(VIA MAILING LIST)
ALL CITY ATTORNEYS
RE: Cost Sharing Agreement
Enclosed for execution by your city' s or town' s duly
author4.zed officer and city attorney is an original signature page
of the. final draft Cost Sharing Agreement . A copy of the
referenced agreement is also attached for your records.
No objection to the amendments proposed by the City of
Santa Clara as set forth in my letter of August 20, 1992 were
received, and no additional amendments were offered. Thus, the
final Agreement contains only these latest modifications.
Kindly forward the executed signature page to me to P.O.
Box 10250, Palo Alto, California 94303 . I will send the agreement
with original signatures to Larry Klose and send a copy of the same
to all parties.
I very much appreciate your assistance and cooperation_ in
helping me finalize this agreement.
Sincerely,
OLLING
Senior Assistant City Attorney
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Enclosures
CC: William Zaner, City Manager
Ariel Pierre Calonne, City Attorney
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CITY OF CUPERTINO APPROVED AS TO FORM:
By: By:
ATTEST:
By: -
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