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HomeMy WebLinkAboutCC RESO 15,822RESOLUTION NO. 15,822 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING CITY OF SAN DIEGO METRO OVERCHARGE REFUND AGREEMENT, AND AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the City of San Diego METRO overcharged METRO participating agencies including the City of National City, during the period FY 1980 through 1986; and WHEREAS, this overcharge was inadvertent and was caused by inaccurate metering; and WHEREAS, interim adjustments have been made in the past; and WHEREAS, accurate metering equipment has now been installed and proved; and WHEREAS, the METRO is now proposing a compromise agreement to finalize restitution for these excessive charges, which agreement would provide for a payment by METRO of $390,163 into the National City Sewer Service Fund. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the Mayor is authorized and directed to execute the agreement on behalf of the City, a copy of which agreement is attached hereto as Exhibit "A". PASSED and ADOPTED this 13th day of December, 1988. ATTEST: tt,we 1 Zk/ LORI ANNE PEOPLES, CITY CLERK APPROVED AS TO FORM: )(_..1„. GEOR E H. EISER, III -CITY ATTORNEY ‘z) SIC GEORGE WATERS, MAYOR Exhibit VIII COMPROMISE AGREEMENT AND MUTUAL RELEASE THIS AGREEMENT AND MUTUAL RELEASE is made by and between THE CITY OF SAN DIEGO, a municipal corporation, herein called "San Diego," and the CITY OF NATIONAL CITY herein called " National City a participating or later 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 11 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. -2- 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, 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 and assigns, as well as past, present, and future directors, shareholders, agents, employees, arising interest, officers, 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 $390,163.00 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. -3- 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 and that party's administrators 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. -4- Unknown Claims 5. (a) 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. (b) 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." -5- (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 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 understands 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. -6- 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. Governing Law 9. This Agreement is entered into, and shall be construed and interpreted in accordance with, the laws of the State of California. (A\FORMS\RELAGRE) -7- IN WITNESS WHEREOF, the participating agency has caused this Agreement to be executed by National City Mayor GEORGE WATERS pursuant to Resolution No. /S Ya?1 , and by the CITY OF SAN DIEGO, acting by and through the City Manager, pursuant to Resolution No. of the City authorizing such execution. Dated this day of , 1988. APPROVED AS TO FORM George H. Eiser, III City Atto; ney WWWWWWWWWWW THE CITY OF SAN DIEGO By City Manager Participating/Later Participating Agency I HEREBY APPROVE the form and legality of the foregoing Agreement this day of 1988. WEH:jg -8- (A\FORMS\RELAGRE.DOC) JOHN W. WITT, City Attorney By Ted Bromfield Chief Deputy City Attorney