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HomeMy WebLinkAboutReso 1988-13893 RESOLUTION NO. 13893 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING COMPROMISE AGREEMENT AND MUTUAL RELEASE WITH THE CITY OF SAN DIEGO PERTAINING TO THE METROPOLITAN SEWERAGE SYSTEM The City Council of the City of Chula Vista does hereby resolve as follows: WHEREAS, since 1979, the participating agencies of the Metropolitan Sewerage System which is operated by the City of San Diego have maintained that they have been overcharged for maintenance and operating costs, and WHEREAS, the installation of more accurate and reliable flow meters in 1986 has now yielded sufficient measurement data to support their position and an adjustment has been proposed by the City of San Diego, and WHEREAS, the attached proposed agreement will approve the adjustment as a final settlement for the disputed overcharge, and WHEREAS, staff has reviewed San Diego's calculations and proposed agreement and consider both to be fair and proper. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Compromise Agreement and Mutual Release between the CITY OF CHULA VISTA, and the CITY OF SAN DIEGO, dated the 9th day Of January , ~g~B~ 1989, a copy of which is attached hereto and incorporated herein by reference as if set forth in full.-~' BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by J n P. or of D. Richard R ssistant P orks City Attorney 5053a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF C, _,_A VISTA, CALIFORNIA, this ].3th day of December 19 Jt~t , by the following vote, to-wit: AYES: Councilmembers Noore, r4cCandl~ss, Nader NAYES: Counc~ 1 members None ABSTAIN: Counci 1members None ABSENT: Councilmembers Cox, Nalcolm Mayor of of Chula Vista ATTEST ~ City Clerk S E. OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chuk~ Vista, California, DO HEREBY CERTIFY that the above and foregoing is o full, true and correct copy of RESOLUT ION N0, 13893 ,and that the some has not been amended or repealed DATED City Clerk CC-660 OOCUMEN NO 79779_. Exhibit VIII FILED JAN 3__01989 OFFICE OF THE CITY CLERK SAN DIEGO, CALIFORNIA COMPROMISE AGREEMENT AND MUTUAL RELEASE THIS AGREEMENT AND MUTUAL RELEASE is made by and between THE CITY OF SAN DIEGO, a municipal corporation, hereinafter sometimes referred to as "San Diego" or "City" and THE CITY OF CHULA VISTA, herein called "member agency," a participating agency pursuant to the Sewage Disposal Agreement of 1960 pertaining to the Metropolitan Sewerage System. Nature and Effect of Agreement 1. This Agreement consists of a compromise and settlement by each party of that party's claims against the other party, and a release given by each party to the other relinquishing all claims against the other. By executing this Agreement, each of the parties intends to and does hereby extinguish certain obligations heretofore existing between them, This Agreement is not, and shall not be treated as, an admission of liability by either party for any purpose. 2. Since 1979, member agencies have disputed figures for "total actual quantity of sewage handled and treated" through the Metropolitan System sewage treatment plant as referred to in Section ll of the Sewage Disposal Agreement of 1960. Billing for administration, maintenance and operation of the Metro System is based on the proportionate share of "total actual quantity" of flow handled and treated in the Metro Sewage System (including infiltration generated by each member agency). It is, therefore, essential that accurate total flow information be utilized in order to determine the proportionate share for each member agency. Member agencies have maintained since 1979 that the total actual quantity of flow through the treatment plant was, in fact, larger than was being reported, with the result that member agencies were collectively being charged with a greater-than-proportionate share of administration, maintenance and operation expenses. This agreement relates totally and exclusively to the matter of proportionate distribution of Metro System administration, maintenance and operation expenses. This Agreement shall specifically exclude matters related to: a. Treatment plant expansion and/or betterments, b. Added operational costs resulting from failure to make timely expansions to those treatment plant facilities not built to designed capacity during the original construction of the Metro System treatment plant. c. Individual disputes between parties to this Agreement relative to the accuracy of measurements of the individual member agency's flow into the Metropolitan Sewerage System. Mutual Compromise Agreement 3. Each party, in consideration of the promises and concessions made by the other, hereby compromises and settles any and all past, present, or future claims, demands, obligations, or causes of action, whether based on tort, -2- contract, or other theories of recovery, which that party has (or which may later accrue to or be acquired by that party) against the other party and the other party's predecessors and successors in interest, and assigns, as well as past, present, and future officers, directors, shareholders, agents, employees, arising from the subject matter of the actions described in Paragraph 2 of this Agreement, on the following terms and conditions: a. The City of San Diego agrees to refund to the member agency the sum of $897,160 as a one-time cash payment by February 15, 1989. If payment is not made by said date then San Diego will pay interest on the above sum from January 1, 1989 through the actual date of payment. Interest shall be computed at the rate of 7.87 per cent. Interest payment shall be subject to execution and delivery of this Agreement to the City of San Diego by the member agency by December 15, 1988. b. The member agency agrees to accept same in lieu of pursuing arbitration or any other claim of relief arising from the subject matter of the actions described in paragraph 2 of this Agreement. c. The City and the member agency agree that this compromise and settlement shall constitute a bar to all past, present and future claims arising out of the subject matter of the actions described in Paragraph 2. Mutual General Release 4. Each of the parties on behalf of administrators and assigns hereby fully releases and discharges the other party an~ that party's administrators -3- and assigns from all rights, claims, and actions which each party and the above-mentioned successors now have against the other party and the above-mentioned successors, stemming from their differences arising from the subjects described in Paragraph 2. Unknown Claims 5. la) Each party acknowledges and agrees that the release it gives to the other party upon executing this Agreement applies to all claims arising from the subject matter as set forth in Paragraph 2, for injuries, damages, or losses to its own property, real or personal (whether those injuries, damages, or losses are known or unknown, foreseen or unforeseen, patent or latent) which it may have against the other party. Each party waives application of California Civil Code Section 1542 relative to the subject matter set forth in Paragraph 2. Ib) Each party certifies that its representative has read the following provisions of California Civil Code Section 1542: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." (c) Each party understands and acknowledges that the significance and consequence of this waiver of California Civil Code Section 1542 is that even if it should eventually suffer additional damages arising out of the facts referred to in Paragraph 2, it will not be able to make any claim for -4- those damages. Furthermore, each party acknowledges that it consciously intends these consequences even as to claims for damages that may exist as of the date of this release but which it does not know exist, and which, if known, would materially affect its decision to execute this release, regardless of whether its lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. Advice of Attorney 6. Each party warrants and represents that in executing this Agreement, it has relied upon legal advice from the attorney of its choice; that the terms of this Agreement have been read and their consequences (including risks, complications, and costs) have been completely explained to it by that attorney; and that it fully unqerstands the terms of this Agreement. Each party further acknowledges and represents that, in executing this release, it has not relied on any inducements, promises, or representations other than those stated herein. Entire Agreement 7. This Agreement contains the entire agreement between the parties. Effective Date 8. This Agreement shall become effective immediately upon execution by the parties listed below. -5- Governing Law 9. This Agreement is entered into, ano shall be construed and interpreted in accordance with, the laws of the State of California. IN WITNESS WHEREOF, the member agency has caused this Agreement to be executed by the Mayor of the City of Chula Vista pursuant to Resolution No. 7 ] ~ , and by the CITY OF SAN DIEGO, acting by and through the City Manager, pursuant to Resolution No. /~"' ~"72~79 of the City authorizing such execution. Dated this ,=~(l~r_v~ day of ~ , 19~.. /~E CITY OF SAN DIEGO /~SIS"I'ANT tgy Manager / City' of Chu]a Vista I HEREBY APPROVE th~rm and 8~egality of the foregoing Agreemen~ this ~ day of 19 . JOHN W. WITT, City Attorney WEH:jg WPC 4142E -6- 272779 (R-89-1378 REV. 1) RESOLUTION NUMBER R-272779 ADOPTED ON JANUARY 30, 1989 BE IT RESOLVED, by the Council of The City of San Diego, that the terms and provisions of the form of the Compromise Agreement and Mutual Release for the Metropolitan Sewerage System Flow Adjustments, on file in the office of the City Clerk as Document Number RR-272779-1, be and the same are hereby approved. BE IT FURTHER RESOLVED, that the City Manager be and he is hereby authorized and empowered to execute, for and on behalf of The City of San Diego, a separate Compromise Agreement and Mutual Release in the .form as set forth above between the City and each of the following Metropolitan Sewerage System Participating Agencies or Later Participating Agencies and in the amounts identified, which agreements are on file in the office of the City Clerk as Documents Numbers set forth: Alpine Sanitation District $ 19,230 RR- 2T277 - City Of Chula Vista/Montgomery 897,160 RR- 2~27T~ City of Coronado 194,188 RR-2~27'79 --~ City of Del Mar ' 79,370 RR- City of E1 Cajon 899,495 RR- City of Imperial Beach 237,555 RR-2T27'79-G City of La Mesa 543,143 RR- .,T27' 9/F Lakeside Sanitation District 244,912 RR- 272779 City of Lemon Grove 180,585 RR-2727'?~ City of National City 390,163 RR-..2T2T',~ '// Otay water District 22,677 P~R- Padre Dam Municipal Water District 101,485 .--"RR- City of Poway 296,475 ' RR- Spring Valle~ Sanitation District 815,8i'6 RR-ZT27'7~ Wintergardens Sanitation District 38,864 RR- 2~27'79'/~ -PAGE 1 OF 2- BE IT FURTHER RESOLVED, that the expenditure of an amount not to exceed $4,961~119.00 from the Sewerage Utility Revenue Fund (No. 41506) is hereby authorized, solely and exclusively for the purpose of providing funds to execute said Compromise Agreements and Mutual Releases. APPROVED: John W. Witt, City Attorney By TB:RH:mb 01/11/89 02/01/89 REV. 1 Aud.Cert:8900589 Or.Dept:W.Utit' R-89-1378 Form=r.auagr -PAGE 2 OF 2- Passed and adopted by the Council of The City of San Diego on JAN b 01989 by the following vote: YF_~S: Wolfsheimer~ Robertst McColl, Pratt, Henderson, McCartv~ Filner. NAYS: None. NOT PRESENT: Struiksma, O'C0nn0r. AUTHENTICATED BY: EAUREEN O'CONNOR Mayor of The City of San Diego, California CHARLES G. ABDELNOUR City Clerk of The City of San Diego, California By: JUNE A. BLACKNELL , Deputy I HEREBY CERTIFY that the above and foregoing is ~ full, true and correct copy of RESOLUTION NO. R- 272?79 : , passed and adopted by the Council of The City of San Diego, California on JAN 01989 CHARLES G. ABDELNOUR City Clerk of The City of San Diego, California (SEAL) By: , Deputy