UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
November 13, 2009
CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION, PLAINTIFF,
NELSON'S MARINE, INC., A CORPORATION. DEFENDANT.
The opinion of the court was delivered by: Vaughn R. Walker United States District Judge
CORRECTED EX PARTE REQUEST TO AMEND SETTLEMENT AGREEMENT; [PROPOSED] ORDER
WHEREAS, on May 14, 2009, this Court entered an order dismissing Plaintiff California Sportfishing Protection Alliance's ("CSPA") claims in the above action, California Sportfishing Protection Alliance v. Nelson's Marine, Inc., Case No. 3:09-cv- 00125-VRW, while retaining jurisdiction over the parties through December 15, 2011, for the sole purpose of resolving any disputes between the parties with respect to enforcement of any provision of the Settlement Agreement.
WHEREAS, on September 24, 2009, CSPA and Defendant Nelson's Marine, Inc. ("Nelson's Marine") finalized an Amendment to the Settlement Agreement ("Amendment"), pursuant to Paragraph 32 of the Settlement Agreement, extending the termination date of the Settlement Agreement to December 15, 2012. A copy of the Amendment entered into by and between CSPA and Nelson's Marine is attached hereto as Exhibit 1 and incorporated by reference.
WHEREAS, the parties submitted the Amendment to the U.S. EPA and the U.S. Department of Justice and the 45-day review period set forth at 40 C.F.R. § 135.5 has completed and the federal agencies have submitted correspondence to the Court indicating that they have no objection to the terms of the Amendment.
WHEREAS, Carl Nelson, owner and President of Nelson's Marine, has signed the Amendment and indicated that he has no objection to the Court amending its dismissal order to include the Amendment.
NOW THEREFORE, Petitioner respectfully requests an order from the Court amending its dismissal to incorporate the Amendment to the Settlement Agreement and to maintain jurisdiction over the parties through December 15, 2012, for the sole purpose of resolving any disputes between the parties with respect to enforcement of any provision of the Settlement Agreement and Amendment.
IT IS HEREBY ORDERED that the Court's May 14, 2009 Order shall be amended to include the attached Amendment to the Settlement Agreement, attached to the Ex Parte Request to Amend Settlement Agreement as Exhibit 1.
IT IS FURTHER ORDERED that the Court shall retain jurisdiction over the parties through December 15, 2012 for the sole purpose of enforcing compliance by the parties of the terms of the Settlement Agreement and Amendment.
IT IS SO ORDERED.
AMENDMENT TO THE SETTLEMENT AGREEMENT AND MUTUAL
RELEASE OF CLAIMS
This Amendment to the Settlement Agreement and Mutual Release of Claims ("AMENDMENT") is entered into between the California Sportfishing Protection Alliance ("CSPA") and Nelson's Marine, Inc. ("Nelson's Marine") (collectively, the "SETTLING PARTIES") with respect to the following facts and objectives:
WHEREAS, the SETTLING PARTIES entered into the Settlement Agreement and Mutual Release of Claims of Case No. 3:09-cv-00125-VRW on March 7, 2009 ("AGREEMENT").
WHEREAS, due to changed circumstances the SETTLING PARTIES have determined that the following amendments to the AGREEMENT are warranted and mutually desirable.
WHEREAS, the provisions of the AMENDMENT will take precedence over and supersede any conflicting terms in the AGREEMENT.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the SETTLING PARTIES hereby agree as follows:
1. The term "Effective Date," as used in this AMENDMENT, shall mean the last date on which the signature of a party to this AMENDMENT is executed.
COMMITMENTS OF SETTLING PARTIES
2. Mitigation, Fees, Costs, and Expenses. As reimbursement for CSPA's investigative, expert and attorneys' fees and costs, oversight compliance, and in lieu of payment by Nelson's Marine of any penalties that may have been assessed in this action if it had proceeded to trial, Nelson's Marine shall pay CSPA the total sum of forty thousand dollars ($40,000). This represents a four thousand dollar ($4,000) increase from the total payment amount set forth in the AGREEMENT. This additional four thousand dollar ($4,000) payment shall be made as part of the third and final payment to be paid by Nelson's Marine to CSPA within one hundred eighty (180) calendar days of the District Court's entry of the Order dismissing the action described in Paragraph 2 of the AGREEMENT. The above payments shall constitute full payment for all costs of litigation and CSPA's request for a mitigation payment, including investigative, expert and attorneys' fees and costs incurred by CSPA that have or could have been claimed in connection with CSPA's claims, up to and including the Effective Date of the AGREEMENT and AMENDMENT.
3. One Year Extension of Termination Date and Corresponding Duties. The Additional Best Management Practices, Increased Housekeeping Measures, Monitoring Requirements, Submission of Monitoring Results, Meet and Confer Regarding Levels of Potential Concern, and Provision of Documents and Reports set forth in the AGREEMENT shall be extended to include the 2011-2012 rainy season, and the termination date in the AGREEMENT shall be extended to December 15, 2012.
4. Stipulated Payment in Event of Non-Compliance. In the event Nelson's Marine fails to abide by the provisions of the AGREEMENT relating to implementation of additional best management practices by November 1, 2009, or in the event that it is determined at the end of an annual rainy season (beginning with the 2009-2010 rainy season) that Nelson's Marine has not abided by the stormwater sampling/testing/monitoring or meet and confer provisions of the AGREEMENT and this AMENDMENT, Nelson's Marine will pay an additional four thousand dollars ($4,000) directly to the Rose Foundation for the sole purpose of providing grants to environmentally beneficial projects within the San Francisco Bay-Delta Estuary, relating to water quality improvements in the area.
5. Review by Agencies. CSPA shall submit this AMENDMENT to the U.S. EPA and the U.S. Department of Justice (hereinafter, the "Agencies") for review. In the event that the Agencies comment negatively on the provisions of this AMENDMENT, CSPA and Nelson's Marine agree to meet and confer to attempt to resolve the issue(s) raised by the Agencies. If CSPA and Nelson's Marine are unable to resolve any issue(s) raised by the Agencies in their comments, CSPA and Nelson's Marine agree to expeditiously seek a settlement conference with the Judge assigned to the Complaint in this matter to resolve the issue(s).
6. Joint Stipulation. Upon approval of this AMENDMENT by the Agencies, the SETTLING PARTIES shall file a joint stipulation with the United States District Court for the Northern District of California to attach this AMENDMENT to the AGREEMENT.
7. This AGREEMENT may be executed in any number of counterparts, all of which together shall constitute one original document. Telecopied, scanned (.pdf), and/or facsimiled copies of original signature shall be deemed to be originally executed counterparts of this AMENDMENT to the AGREEMENT.
The SETTLING PARTIES hereby enter into this AMENDMENT to the AGREEMENT.
Date: ______________, 2009 NELSON'S MARINE, INC.
__________________________________________ By: Carl Nelson
Date: , 2009 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
__________________________________________ By: Bill Jennings
Title: Executive Director
APPROVED AS TO FORM:
Date: ______________, 2009 FITZGERALD ABBOTT & BEARDSLEY
____________________________________ By: Paul S. Kibel, Esq.
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