HERCULES CITY COUNCIL RESOLUTION NO. 22-____
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERCULES AUTHORIZING THE CITY MANAGER TO EXECUTE A LEGAL SERVICES AGREEMENT BETWEEN THE CITY OF HERCULES & SHER EDLING LLP REGARDING PCB LITIGATION WHEREAS, the San Francisco Bay, Contra Costa County, and the Municipalities within the County including the City of Hercules, have been polluted by polychlorinated biphenyls (“PCBs”), a group of human-made chemical contaminants that are detected in human, animal, and plant tissue around the world; and WHEREAS, PCBs have been used for a wide range of commercial, household, and industrial uses starting in the 1920s and ending in 1977 after PCBs were banned in the Toxic Substances Control Act; and WHEREAS, PCBs are known or suspected to cause a wide range of cancers including non-Hodgkin’s lymphoma, breast cancer, liver cancer, gallbladder cancer, gastrointestinal cancers, pancreatic cancer, and skin cancer and are also implicated in numerous non-cancer health problems including cardiovascular, endocrine, gastrointestinal, hepatic (liver), immune, neonatal, neurological, ocular, and reproductive harm; and WHEREAS, the chemical company Monsanto produced nearly 99 percent of all PCBs used in the United States; and WHEREAS, in 2016, litigation was initiated in the matter of City of Long Beach v. Monsanto (Case No. 2:16 CV-03493-FMO-AS in the US District Court for the Central District of CA), to recover costs associated with removing PCBs from the environment; and WHEREAS, on March 14, 2022, the court approved a Class Action Settlement that would provide Contra Costa County permittees approximately $9.3 million dollars to fund PCB cleanup efforts, with the City of Hercules designated to receive $312,976 per the proposed settlement; and WHEREAS, the settlement amount offered plaintiffs is considered by independent analysts to be insufficient to cover the true long term cost of PCB cleanup, estimated to be $5 to $9 million for the City of Hercules; and WHEREAS, at the City Council meeting closed session dated July 12, 2022, the Council voted unanimously to join other cities across the state and in Contra Costa County that have opted-out of the class action settlement related to Monsanto Company’s manufacture and sale of PCBs and instead to initiate direct litigation; and WHEREAS, prior to the opt out deadline of July 25th, a formal opt out notification was submitted on the City of Hercules’ behalf notifying the court of the decision to opt out; and WHEREAS, at the Council meeting of July 12, 2022, the City Council further authorized retaining the law firm of Sher Edling LLP to represent the City in direct litigation; and WHEREAS, Sher Edling will represent the City with respect to the following matters:
a. Contamination related to (i) polychlorinated biphenyls (PCBs); and/or (ii) other contaminants of concern identified by Client and approved by Attorney (collectively, the “Contaminants”). b. Claims and/or actions seeking equitable and legal relief, including but not limited to an abatement fund, and/for damages sustained by the City as a result of actual or threatened contamination, and the past, present, and any future cost incurred to remove the Contaminants.
WHEREAS, the compensation that Sher Edling will receive for the legal services to be provided under this Agreement will consist of a contingent fee, as more fully described in Attachment A; and WHEREAS, the City Council has determined that the proposed Legal Services Agreement with Sher Edling is appropriate and warranted.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hercules that the City Council hereby authorizes the City Manager to execute a Legal Services Agreement with Sher Edling LLLP in substantially the same form as provided in Attachment A to this resolution.
The foregoing Resolution was duly and regularly adopted at a regular meeting of the City Council of the City of Hercules held on the 25th day of October 2022, by the following vote of the Council:
AYES: NOES: ABSENT: ABSTAIN:
Dion Bailey, Mayor
ATTEST:
Lauren Berges, CMC City Clerk