HomeMy WebLinkAboutOrdinances - No. 1739ORDINANCE NO. 1739
ANCE OF THE CITY OF THE CITY OF LODI
OVISIO~S,” SUBSECTIONS “0
AND “E,” AND AD
CODE RELATING TO AVAILAEILI~ OF
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS:
Section 8.24.090 - “Miscellaneous Provisions” Subsections “D and
“E” of the Lodi Municipai Code is hereby repealed and reenacted to read as follows:
D. Settlement Procedures and Consequences.
1. nt of Joint and Several Liability. Any person alleged by the city to be
jointly and liable pursuant to this chapter, or any person who has been found to
be jointly and severally liable pursuant to this chapter by a final and binding
administrative order or final order of a court of competent jurisdiction, who has entered
an Effec~ive Settlement, Adminis~rative Se~lement, or Judicially Approved
lement shall not be liable for claims for contribution, equitable indemnity, or partial or
comparative equitable indemnity regarding matters addressed in the settlement. Such
settle men^ does not discharge any of the other potentiaily responsible parties unless its
terms so provide, but it reduces the potential liability of the other jointly and severally
liable parties that have not settled by the amount of the settlement. Unless the
settlement qualifies as an Administrative Settlement (the final action validating and
approving which has neither been stayed nor reversed by a court 6f competent
jurisdiction) or as a Judicially Approved Settlement (the final order dalidating and
approving which has neither been stayed nor reversed on appeal by a court of
competent jur~sdic~ion) pursuant to this s~~sec~ion, the status of any settlement of all or
any part of any joint and several liability imposed by this chapter as an Effective
Settlement may be challenged in a civil action by any person not party to the settlement
ag~eement whose rights or interests are or may be adversely affected by the settlement
and whose claims against the settling party are not otherwise barred by operation of law.
2. Administrative Set~lement. The validity of any settlement of all or any part of
any joint and several liability or obligation imposed by or pursuant to this chapter (or any
other liability that the city attorney is authorized to assert on behalf of the city or the
people of the state of California related to protection of public health, welfare and the
environment and which is not required by the general laws of the state of California to be
judicially validated or reviewed for good faith purposes by another prescribed process
that is @xclusiv~ of the proc~sses
Settlement may be determined by a final action of the city council validating and
approving the settlement pursuant to the following methods that is applicable:
~ursuant to this ch
a. If at the time of the effective settlement there is not pending an
administrative adjudicatory proceeding brought pursuant to this chapter to which the
settling party is a respondent, by a resolution of the city council adopted at or following a
properly noticed public meeting of the city council, provided that advance public notice of
the council’s consideration of the settlement for purposes of validating it as an Effective
Settlement has been published in the Lodi News-Sentinel for at least two consecutive
two-day periods commencing at least two weeks in advance of the scheduled meeting of
the city council at which the settle will be considered. The notice required by this
subsection 2.a shall provide the p ith notice of the availability of the settlement for
public review, the general nature of the pending settlement and its general effects if
approval of the settlement as an ~ffective Settlement is granted, the date and time
scheduled for city council meeting, and provide for an public comment period in advance
of the council meeting of at least ten (10) days duration during which any person may
submit written comments on the settlement to the city attorney for timely presentation to
the city council, and of the opportunity of interested parties to attend the city council
meeting and request time to present orally their views to the city council; or
b. If there is an administrative proceeding brought pursuant to this chapter to
which the settling party is a respondent pending at the time of the effective settlement,
by joint motion for approval of the settlement brought before the hearing officer by the
'city attorney and by the settling party or parties, provided that advance public notice of
the motion has been published in the Lodi Sentinel for at least two consecutive two-day
periods commencing at least two weeks in advance of the scheduled hearing before the
hearing officer at which the motion for validation and approval of the Settlement will be
considered. The notice required by this subsection 2.b shall provide the public with
notice of the avaiJability of the settlement for public review, the general nature of the
pending settlement and its general effects if approval of the settlement as an Effective
Settlement is granted, the date, time and place scheduled for hearing, and provide for a
public comment period in advance of the hearing of at least ten (10) days duration during
which any interested members of the public may submit written comments on the
settlement to the city attorney for timely presentation to the hearing officer together with
the written responses of the settling parties, if any, and of the right of any person whose
interests are or may be adversely affected by the settlement to petition the hearing
officer for permissive leave to intervene in the proceedings for the sole purpose of
protecting their interests that are or may be adversely affected by the se~lement, which
leave, if granted by the hearing officer, may be conditioned as the hearing deems proper
in the interests of justice and as approp~iate given the nature of matter pending before
the hearing office and its actual or threatened adverse impact on the public health,
welfare or the environment, and the right of interested members of the public to seek
leave from the hearing officer, which leave is committed to the sole discretion of the
hearing officer, to address the hearing officer on the record regarding the merits of the
motion at the scheduled hearing. If timely and properly objected to by any party to the
administrative proceeding (specifically including any person granted leave to intervene in
the proceeding), the hearing officer's report and r~ommendation regarding the motion
for approval and validation of the settlement, which shall be rendered and filed by the
hearing officer on an expedited basis, shall, together with any timely objections to that
report and recommendation, be brought before the city council for final action at its next
public meeting held pursuant to the regularly applicable notice requirements.
3. Judicially Approved Se~lement. The validity of any ~@~lement of all or any
part of any joint and several liability or obligation imposed by or pursuant to this chapter
(or any other liability that the city attorney is authorized to assert on behalf of the city or
the people of the state of California related to protection of public health, welfare and the
environment and which is not required by the general laws of the state of California to be
judicially validated or reviewed for good faith purposes by another prescribed process
that is exclusive of the processes available pursuant to this chapter) as an effective
settlement under this chapter may be judicially determined and finally resolved, as
follows:
a. In an action brought by the city attorney in the name of the city pursuant
to Part II, Title 10, Chapter 9 of California Code of Civil Procedure, Sections 860-870; or
b. if, at or within sixty days following the date of settlement, there is a judicial
een the settling party and the city in which the city has asserted one
g under this chapter, by joint motion brought in such pending action
for judicial approval of the settlement, with such advance public notice, if any, deemed
appropriate by the court of the availab~lity of the se~flemen~ for public review, the general
nature of the pending motion and its general effects if granted, the date and time
scheduled for hearing of the motion, the available intervention procedures, and the
opportunity for interested or affected members to submit comments on the settlement to
the city attorney for timely presentation to the court, together with the city’s response
thereto.
4. Persons Not a Party to ~ettlement. If the city has obtained less than
complete relief with respect to an Environmental Nuisance from a person who has
resolved its liability to the city imposed pursuant to this chapter in an administrative or
judi~ially approved settlement, the city may bring or continue an action against any
person who has not resolved its liability imposed pursuant to this chapter with respect to
such €nvironmental Nuisance.
Contribution.
1. To the full extent authori~ed by, and subject to the terms and conditions set
I laws of the state of California, any person who is or may be liable to
to this Chapter 8.24 for payment for, or performance of, some or all of
tement Action or other obligation ~mposed pursuant to this chapter, or for
recovery of some or all of Abatement Action Costs incurred or to be incurred by the city,
may seek contribution pursuant to the general laws of the state of California from any
other person, specifically including the city, liable under this chapter for some or all of the
same relief who has not obtained valid con~ribu~ion protection that precludes by
operation of law such contribution recovery from such person. Any con
brought under this subsection E.l of this section 8.24.090, or concerni
arising pursuant to this chapter, shall be governed by the general laws
Cati~ornia.
2. No~ithstanding the provisions of subsection E.1 of this section 8.24.090, if
any court of competent jurisdiction deiermines that the general laws of the state of
California do not provide for any legal process by which a person who is or may be
jointly and severally liable to the city pursuant to this Chapter 8.24 for payment for or
performance of some or all of an Abatement Action or other obligation imposed pursuant
to this chapter, or for recovery of some or all of Abaiement Action Costs incurred or to be
incurred by the city, may seek contribution from any other jointly and severally liable
parties, specifically including the city, then, and in that event only, such a contribution
action may be commenced and maintained pursuant to this subsection E.2 of this
section 8.24 .090 by: (1) any person who is or may be jointly and severally liable to the
City pursuant to this ~hapter 8.24 against any other jointly and severally liable or
potentially liable party, specifically including the City, during or following any civil action
commenced by the City Attorney pursuant to this Chapter 8.24; or (ii) a respondent to
an administrative order issued pursuant to this chapter that has become final and
binding and not subject to further direct judicial review who is in complete compliance
with the requirements of that order against any other party who IS also jointly and
severally liable or potentially liable for some or all of the relief imposed by the order.
a. In any contribution action commenced or maintained pursuant to this
subsection E.2 of this section 8.24.090, the court, in resolving contribution claims, may
allocate Abatement Action Costs, the costs or performing Abatement Actions or other
joint and several relief imposed pursuant to this chapter among liable parties using such
equitable factors as the court determines are appropriate.
b. In resolving any contribution claims brought pursuant to subsection E.2(ii)
of this section 8,24,090~ the court shall give the highest priority to securing the
ditious and complete compliance with the terms and conditions of the final and
istrative order and shall manage the proceedings in the contribution action
e the uninferrupted, timely and complete compliance with the requirements
of the final and binding administrative order.
right, if any, of:
any person to bring an action for contribution under federal law or
under the general laws of the state of California in the absence of a civil action
commenced by the city attorney under this chapter; or
a respondent to an administrative order issued pursuant to this
chapter to bring an action for contribution under federal law or under the general laws of
f California although such respondent is not in complete compliance with the
ts of that administrative order.
c. Nothing in this subsection E.2 of this section 8.24.090 shall diminish the
i.
ii.
3. In any contribution action to apportion any liability arising under this chapter,
the rights, if any, of a person who has resolved its liability to the city to recover
con~ribution from other jointly and severally liable parties shall be subordinate to the
direct rights of the city to seek and recover the relief authorized by this Chapter 8.24
from those same liable patties.
Section 8.24.090 “F‘ - “Computation of Time” of the Lodi Municipal Code
ed to read as follows:
n of Time. In computing any period of time pres
ay of the act, event, or default from which the d
ns to run shall be included. The last day of the period so
unless it is a Saturday, a Sunday, or a legal holiday, in whi
runs until the end of the next day which is not one of the afore men ti one^ days. When
the period of time prescribed or allowed is less than eleven days, in~ermediate
Saturdays, Sundays, and legal holidays shall be exciuded in the computation.
All ordinances and parts of ordinances in conflict herewith are repealed
ch conflict may exist.
. No Manda~o~ Duty of Care. This ordinance is not intended to and shall
onstrued or given effect in a manner which imposes upon the City, or any officer
or employee thereof, a mandatory duty of care towards persons or property within the
City or outside of the City so as to provide a basis of civil liability for damages, except as
otherwise imposed by law.
erabili~~ If any provision of this ordinance or the application thereof
circumstances IS held invalid, such invalidity shall not affect other
provisions or applications of the ordinance which can be given effect without the invalid
provision or application. To this end, the provisions of this ordinance are severable. The
City Council hereby declares that it would have adopted this ordinance ir~espe~ive of
the invalidity of any particular portion thereof.
N 6. This ordinance shall be published one time in the “Lodi News Sentinel”, a
daily newspaper of general circulation printed and published in the City of Lodi and shall
take effect thirty days from and after its passage and approval.
Approved this 7'h day of January, 2004
Mayor
Attest:
....................................................................
State of California
County of §an Joaquin, ss.
Ordinance No. 1739 was int
of Lodi held Dec
print at a regular
I, Susan J. Blackston, City Clerk of the City of Lodi, do hereby certify that
eeting of the City Co
ter passed, adopted
g of said Council held January 7, 2004, by the fol
AYES:
NOES;
ABSENT: COUNCIL MEMBERS - None
ABSTAIN: COUNCIL MEMBERS - None
COUNCIL MEMBERS - Beckman, Howard, and Land
COUNCIL MEMBERS - Hitchcock and Mayor Hansen
I further cet'ti
date of its pa
Ordinance No. 1739 was approved and signed by the Mayor on the
and the same has been published pursuant to law.
City Clerk
Approved as to Form:
RANDA~~ A. HAYS
City A~orney