1997-0903_MOULTON NIGUEL WATER DISTRICT_Mutual Release and Settlement Agreement0 0
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This Mutual Release and Settlement Agreement ("Agreement") is effective the 3rd
day of September, 1997, by and between the Moulton Niguel Water District ("MNWD"), a
public agency and the Capistrano Valley Water District ("CVWD"), a public agency.
RECITALS
1. On February 13, 1997, the MNWD filed a claim against CVWD (the "CVWD
claim") alleging a misallocation of tax revenues by the County of Orange ("County") in that
tax revenues collected by County and allegedly owing to the MNWD were instead
distributed by County to CVWD. In the CVWD claim the MNWD alleged that all tax
revenues misallocated from fiscal year 1982/1983 to the present should be returned by
CVWD to MNWD. In addition to seeking the return of revenues allegedly misallocated to
CVWD, the CVWD claim sought costs of suit and interest on the alleged misallocated
revenue from the date of misallocation.
2. The MNWD filed a similar claim against the County (the "County claim"),
based on the same basic facts as the CVWD claim. If the County claim becomes the basis
of a lawsuit by MNWD against the County, the County is expected to file a cross-complaint
against CVWD for the amount sought by MNWD.
3. CVWD disputes the CVWD claim and disputes the County claim and denies
that it owes any monies to the MNWD or to County.
4. MNWD and CVWD have reached a settlement of the dispute between them,
and wish by this Agreement to effect a full release of all claims and counter claims by and
between them with respect to the CVWD claim and the County claim.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein,
the parties agree as follows:
AGREEMENT
1. CVWD shall pay the MNWD the amount of $213, 889 plus interest in the
amount of $11,797, or the total sum of $225,686.
2. Payment by CVWD shall be made by deducting the sum referenced in the
preceding paragraph from the consideration MNWD will owe and pay to CVWD pursuant
to the "Agreement For Transfer of Reach 1 of San Juan Basin Authority Pipeline" between
CVWD and MNWD, among other parties.
3. In consideration of the mutual promises and conditions contained herein,
MNWD and its directors, officers employees, agents and contractors, and CVWD and its
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directors, officers, employees, agents and contractors, including the City of San Juan
Capistrano, forever release, acquit, and discharge each other of and from any and all
demands, liabilities, claims, actions, accountings, debts or obligations arising from or
relating to the facts stated in the CVWD claim and the County claim.
4. The MNWD agrees not to pursue the County claim, and specifically agrees
not to sue the County based on the facts alleged in the County claim. This Agreement may
be pleaded as a full and complete defense to, and may be used as the basis for an
injunction against any action, suit or other proceeding which may be instituted, prosecuted
or attempted in breach of this Agreement, including but not limited to, any lawsuit by the
MNWD against the County based on the County claim.
5. The parties are aware that they may hereafter discover claims or facts in
addition to or different from those they now know or believe to be true with respect to the
CVWD claim. Nevertheless, it is the intention of the parties in consideration of the mutual
promises and covenants herein, to fully, finally and forever settle and release all matters
related to the CVWD claim. In furtherance of such intention, the release given herein shall
be and remain in effect as full and complete release of all such matters, notwithstanding
the discovery or existence of any additional or different claims or facts relative thereto.
Therefore, the parties expressly acknowledge, waive and relinquish all rights and benefits
available under Section 1542 of the Civil Code of the State of California, as it relates to the
CVWD claim, which provides:
"CERTAIN CLAIMS NOT AFFECTED BY GENERAL
RELEASE - 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."
6. It is understood and agreed that this is a compromised settlement of disputed
claims and is made without any admission of liability on the part of any party hereto.
7. This Agreement contains the entire agreement of the parties regarding the
subject matter herein and supersedes any prior or contemporaneous agreements, whether
written or oral.
8. This agreement may be executed in counterparts and shall be binding and
valid as if all the parties' signatures were on one document.
9. Each party has received independent legal advice from its own attorneys with
respect to the advisability of making the settlement provided for herein, and with respect
to the advisability of executing this Agreement. No party (nor any director, officer, agent,
employee, representative, or attorney of or for any party) has made any statement or
representation to any other parry regarding any fact relied upon in entering into this
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Agreement, and each party does not rely upon any statement, representation or promise
of any other party (or of any director, officer, agent, employee, representative, or attorney
for the other party), in executing this Agreement, or in making the settlement provided for
herein, except as expressly stated in this Agreement. Each party or responsible officer
thereof has read this Agreement and understands the contents hereof. The person(s)
executing this Agreement on behalf of the parties are empowered to do so and hereby bind
each entity.
10. All of the covenants, stipulations, promises and agreements contained in this
Agreement by or on behalf of, or for the benefit of, any of the parties hereto, shall bind and
inure to the benefit of the successors and assigns of the respective parties.
11. If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining provisions hereof shall
not, in any way, be affected or impaired thereby.
12. The parties will execute all such further and additional documents as shall
be reasonable, convenient, necessary or desirable to carry out the provisions of this
Agreement.
13. Except as may be specifically provided for herein, nothing contained in this
Agreement is intended to confer, nor shall this Agreement be construed as conferring, any
rights, including, without limitation, any rights as third -party beneficiary or otherwise, upon
any entity or person not a party hereto.
14. Each parry shall bear its own attorney's fees and costs in respect to this
Agreement and the CVWD claim.
15. This Agreement shall be amended only by a written instrument executed by
the parties hereto or their successors or assigns. All waivers of this Agreement must be
in writing and signed by the authorized representatives of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year set forth below:
DATE: September, 1997
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MOULTON NIGUEL/WATER DISTRICT
By:
esi ent 61
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e etary
APPROVED AS TO FORM:
BOWIE, ARNESON, KADI, WILES & GIANNONE
General Counsel, MNWD
By: / 16;t. �p'ir —cam
PATRICIA B. GIANNONE
DATE: September—V, 1997
APPROVED AS TO FORM
WOODRUFF, SPRADLIN & SMART
M
COUNSEL TO CVWD
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WATER DISTRICT
F1
APPROVED AS TO FORM:
BOWIE, ARNESON, KADI, WILES & GIANNONE
General Counsel, MNWD
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PATRICIA
PATRICIA B. GIANNONE
DATE: SeptembeP , 1997
APPROVED AS TO FORM
WOODRUFF, SPRADLIN & SMART
WATER DISTRICT
By: A�/�c�J-✓t
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0
October 6, 1997
Lois E. Jeffrey
Woodruff, Spradlin & Smart
701 South Parker Street, Suite 7000
Orange, California 92868
MEMBERS OF THE CITY COUNCIL
COLLENE CAMPBELL
JOHN GREINER
WYATT HART
GIL JONES
DAVID M. SWERDLIN
CITY MANAGER
GEORGESCARSOROUGH
Re: Settlement Agreement Between Moulton Niguel Water District and the
Capistrano Valley Water District
Dear Ms. Jeffrey:
Pursuant to your memorandum of September 30,1997, requesting signature by the
appropriate City officers, enclosed is one executed original of the Settlement
Agreement Between Moulton Niguel Water District and the Capistrano Valley Water
District.
Very truly yours,
Cheryl Johnson, CMC
City Clerk
Enclosure
32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171
LAW OFFICES OF
WOODRUFF, SPRADLIN & SMAR
A PROFESSIONAL CORPORATION
MEMORANDUM
TO: George Scarborough, City Manager
City of San Juan Capistrano
FROM: Lois E. Jeffrey
DATE: September 30, 1997
RE: Originals of Settlement Agreement between Moulton Niguel Water District
and the Capistrano Valley Water District
Enclosed herein for signature by the appropriate City officers are two (2) originals
of the settlement agreement between the Moulton Niguel Water District and the Capistrano
Valley Water District. This is the final form of the Agreement approved by the attorneys for
both sides.
The Agreement can be signed in counterpart so after both originals have been
signed by City officials, please send one original back to my office. I will transmit that to
the attorney for MNWD. In turn, MNWD is forwarding an executed original through their
attorneys to my office. We will see that it is transmitted to you so that ultimately you have
a fully executed version for your files.
If you have any questions, please do not hesitate to give me a call.
LOIS E. JEFFREY
Enclosure
cc: John R. Shaw, Esq.
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OCT 1 1997