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Orange County Sanitation Districts No. 3 and No. 11 - 1986-05-05
y'ML/�TIOy C.0,' UNTY . SANITATION'''DISTRICTS OF�ORANGE COUNTY, CALIFORNIA £ P.O. BOX 8127, FOUNTAIN VALLEY. CALIFORNIA 92726-8127 "•'L fi 10844 ELLIS, FOUNTAIN VALLEY, CALIFORNIA 92708.7018 °��+cr co►'' (714) 962-2411 September 11 , 1986 City of Huntington Beach 2000 Main St-eet Huntington Beach , CA 92648 Attention: Donald W. Kaiser Division Engineer Subject: Settlement Agreement and General Release of All Claims Suzanne Atkins , the Districts' Assistant General Counsel , mentioned that you did not keep a copy of subject Settlement Agreement for your records . I am, therefore, enclosing a fully-executed copy of said agreement which cover the claims for damage to District 3 and 11 sewers . This agreement was approved by the Boards of Directors on May 14 , 1986 , and payment has been authorized upon receipt of approved invoices from the City. If you have any questions , please don' t hesitate to contact me. Rita Z Brown Board Secretary rjb Enclosure LAW OrrICCS OF Ro u r L e `c ` (3,C),rlru � � JAMES G. ROURKL • ram►Es3�cr.Al '040ppATOON tELCCOr Cp ;i141 a3S-T7bT A ALAN H WATTS .ROMAS L WOOORU►'F SU1TC 7000 CAH.0 ArURESS'5+OKwOCG .KENNARU R.SMART, JR. ►iExLIS rMA►JCIAL CrEN CR TCLro 9U-4z94 OANICL K, SPRAOLIN LYOIA S LEVIN 701 SGUTH PAAvr Er. STRCET MARK T.WILLMAN ORANGE, CAL#rop IA ozGce � SU2ANNC O.ATKINS LOIS C JCFFREY TCLLf'HONE (?14) S5E1•7000 THOMAS r. NIuON CkLf, ©A,1 A) P-JA^ tfa r ch 14 , 1986 / 7- 76 7"40 Mr. . Donald .W. Kizer Ica Div:iSI`on` Engineer Department of Public Works City of Huntington Beach 2000 Main Huntington Laach , CA 92647 Re : Local Sewering Agency Manhole Rehabilitation and Reimbursement Program ----------------------------------------- Dear Mr. Kizer : We have recently submitted to you a revised Settlement Agreement and General Release of All Claims relative to the Districts' Manhole Rehabilitation and Reimbursement Program. Please find enclosed another version of this Settlement Agreement which has been modified to reflect our discussion of March 13 , 1986 , and the amended calculations submitted to me by the Dis- tricts' Director of Engineering, Mr . Thomas M. Dawes. In the event you approve the Settlement Agreement and General Release of All Claims, please cause the original and copies to be executed by the appropriate officials, return them to this office for presentation to the Districts' Board of Directors. If you should have any questions with regard to this matter, please do not hesitate to contact the undersigned. Very truly yours, ROURKE & WOODRUFF Suzanne Atkins Assistant General Counsel SDA :cjs : 6 *03/31/ 86 Enclosures cc : Mr . J. 11. Sylvester (w/out enclosures) Mr. T. Dawes (w/out enclosures ) Mr . G. Str eed (w/out enclosures) 0EQUrp FOR 'CITY Cd(3i ACTION Date bpril 14 , 9 GtL Submitted to: Honorable Mayor and City Council Members .. Submitted by: Charles W. Thompson, City Administra t 7 G1 yY Prepared by: Paul E . Cook , Director of Public Works G1�� Su13ject: Settlement Agreement and General Release aims Consistent with Council Policy? (X] Yes ( ] New Policy or Exception ,Y Statement of 1.ssOe, Recommendation, Analysis, Funding Source, Alternative Actions, Attachments: STAT6'1ENT OF ISSUE: Transmitted herewith is a Settlement Agreement and General Release of All Claims , prepared by Counsel for the Orange County Sanitation 'districts , relative to the Districts;',. Manhole Rehabilitation and Reimbursement Proaram. RECOMMENDATION: Approve •the Settlement Agreement and General Release of All ylaims wnich. will result in the City receiving a $71 , 086 reimbursement, and authorize the Mayor and City Clark to execute the original and two copies of the document . ANALYSIS : During the Spring of 1905 , the Directors of the Sanitation Districts approved a program to reimburse Cities for the costs of rehabilitating certain manholes which are adjacent to County Trunk Sewers , which manholes become damaged by sewer gases , accelerated by the sizes of the trunks . The Department of Public Works provided a listing of 103 manholes for consideration , and reviews over the past months have resulted in the County approving 69 manholes for reimbursement in the amount of $71 , 086 . This amount exceeds the amount the City has been expending each year for rehabilitations Citywide, which program commenced in 1980 . Funding for the annual rehabilitations has been allocated from the Sewer Fund . FUNDING SOURCE: There will be no outlay of funds , however the City Council may consider directing the reimbursement to be deposited in the Sewer Fund . ALTERNATIVE ACTIONS : Do not approve the document, and forego receipt of the reimbursement . ATTACHMENT: Settlement Agreement and General Release of All Claims . PIO 4/8< r SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS WHEREAS, C)UU� TY SANITATION DISTRICTS NOS. 3 AND 11 OF ORANGE COUNTY, CALIFORIIIA (hereinafter referred to as "Districts") , are public agencies and political subdivisions of the State of Cal i- fornia, formed and existing pursuant to the County Sanitation District Act , California Health & Safety Code Section 4700 gj _U9244 and WHEREAS , Districts maintain trunk sewer and interceptor sewer lines throuahout the boundaries of Districts' respective jurisdictions for purposes of receiving sanitary sewage from collector lines of Cities and Sanitary Districts within Dis- tricts' boundaries, and transporting said sewage to the waste- water, reclamation and treatment plants owned and operated by Districts; and WHEREAS, CITY OF HUNTINGTON BEECH (hereinafter referred to as "City") , is a municipal corporation, which is located within the boundaries of Districts, and which maintains local collector sewers which connect to the Districts' trunk and interceptor sewer facilities; and WHEREAS, City has determined that certain of its sewer manholes, located in the proximity of the Districts' trunk: and interceptor facilities, have incurred severe damage as a result of deterioration by hydrogen sulfide gasses ; and 1 WHEREAS, City ,has claimed that hydrogen sulfide gasses are a result of the Districts' operation of its trunk and interceptor sewers; and WHEREAS, Districts now wish to effect a settlement and resolution of the cl aim of City. NOW , THEREFORE, in consideration of the mutual promises set forth herein, the parties agree as follows : BY THIS INSTRUMENT, the City of Huntin:,�- on Beach , a muni -- c1"pal corporation (hereinafter referred to as "Releasor" ) , for the sole consideration of seventy--one Thousand Eighty-- six and 00/100 Dollazs ($71 ,0 86 .00) , to be paid L-5' Districts, does hereby and' for its successors and assigns, releasee, acquit and fare er dis char ce the C06NTY SANITATION DISTRICTS OF ORANGE COUNTY, CAI,I- FORNIA, and each of then , thei r off icers, agents or er. pl ogees (collectively referrea to as "Districts") , from any and all claims, actions, causes of action, demands , suits , rights, damages, costs, loss of service, expenses and compensation what- soever, known and unknown, foreseen or unforeseen, which Feleasor now has or which may hereinafter accrue on account of or in any way resulting or to re-cult in damages to Rel easor s' real or personal property caused by the ownership and maintenance of trunk line and interceptor sewers by the Districts in the City of Huntington Beach, County of Orange, State of California, to wit : the erosion, corrosion and partial disintegration of certain local sewer manholes owned by Releasor, which connect to the 2 Districts' trunk sewers, and assertedly caused by the effects of hydrogen sulfide gas, or othor gaseous, solid or l iauid sub- stances that create physical , chemical or biological reactions in the trunk sewer lines and facilities owned by the Districts. IT IS UNDERSTOOD AND AGREED that this settlement is a com- promise of a doubtful and disputed claim, and the payment made is not to be construed as an admission of liability on the part of the Districts, or any of them, and that said parties deny lia- bil'ity Ithe.refor and intend merely to avoid litigation and buy their peace. The Releasor agree.: that it will forever refrain and forebear from commencing, instituting or prosecuting any lawsuit, action or other proceeding against Districts based on, arising out of or in any way connected w ith the subject matter of this P.elease. IT IS FURTHER UNDERSTOOD, INTENDED AND AGREED that this Release shall be effective as against all rights and benefits conferred upon P.eleasor under Section 1542 of the Civil Code of California, which provides : "A General Release dc,es not extend to claims which the creditor does not know or suspect * k, exist in his favor at the time of executing the Release , which if known by him, must have materially effected a settlement with the debtor " ; and any similar law of any state or territory of the United States. • RELEASOR HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS AND 3 'ti BENEFITS CONFERRED UNDER THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE AND ANY SIMILAR LAW OF ANY STATE OR TERRI— TORY OF THE UNITED STATES AND HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, OR LOSSES THAT IT MAY INCUR FROM THE. ABWE--M.EIJTIONED SUIT. Releasor understands and acknowledges the significance and consequence of such specific waiver. Releasor has agreed to the terms of this Release and the waiver of Section 1542 in par ` , because of its knowledge of how to properly maintain local sewer manholes and avoid damage to them. The Releasor hereby declares and represents that the damages sustained to the Releasors' facilities and properties are or may be progressive and that , successful repair and prevention of future damage is contingent upon Releasor performing proper main- tenance procedures in the future, and in making this Release, it is understood and agreed that the Releasor relies wholly upon its judgment, belief and knowledge of the nature, extent, effect and duration of said damages therefor; and this Release is made without reliance upor any statement or representation of the Districts or any of them. The Releasor further declares and represents that this Release is f reely and voluntarily executed; that no promise, inducement or agreement not herein expressed has been made to the Releasor ; and that the Release contains the entire agreement between the parties hereto and that the terms of this Release are contractual and not a mere recital . 4 Releasor represents and warrants to Districts that it has not heretofore assigned c ,_ transferred or purported to assign or transfer to any person, firm, corporation, association or entity any of the rights, claims, warranties, demands, debts, obliga-- tioils, liabilities, actions, damages, costs, expenses, and other claims whatsoever, and e.. ch of the undersigned agrees to indemnify and hold harmless the Districts against, without limi- tation, any end all rights, claims, warranties, demands, debts , obligations, 'Liabilities, action,, damages, costs, expenses, and other claims, including attorneys' fees, arising out of or con- nected with any such assignment or transfer or purported assign- ment or transfer. The undersigned acknowledges that it has been represented by counsel of . its own choice in connection with the preparation and execution of this General Release of All Claims. Releasor acknowledge !; and : epresents that it has read this General Release of All Claims in full and uncle; stands and volun- tarily consents and agrees :.o each and every provision contained herein. It is hereby expressly acreed that in the event it shall become necessary to bring suit in connection with any provision of this Release, the prevailing party shall be paid such sum as the Court may adjudge as reasonable attorneys' fees. The persons executing this General Release of All Claims represent and warrant to the Districts that the execution and performance of the terms of this Release have been duly autho- rized by all requisite municipal or other entity requirements and 5 • ir w that said persons have the right , 'power , legal capa • • andenter intothis • ' r •N: CAREFULLY READ THE ENTIRE RETjEASE BEFORE • air l� Executed • of 1986 , h � �! /.� • California. CITY OF • - BEACH, a m unicipal corporation ; • City Clerk Mayor ZRCI • FORM* ..i R ' ���.•l I' Y \ � ♦' - - • c��•7 / r' it � t' 1 - "e. _ .i' *;� i