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Settlement - California State - 2016-11-17LAW OFFICES OF HARPER & BURNS LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING A PROFESSIONAL CORPORATION JOHN R. HARPER* 453 SOUTH GLASSELL STREET ALAN R. BURNS ORANGE, CALIFORNIA 92866 COLIN R. BURNS ALEX M. HALFMAN TELEPHONE (714) 771-7728 FACSIMILE (714) 744-3350 *A PROFESSIONAL CORPORATION November 18, 2016 Via U.S. Mail Tyler L. Krentz, Deputy Attorney State of California, Department of Transportation Legal Division 4050 Taylor Street, MS 130 San Diego, California 92110 Alan R. Burns arb@harpei-burns.com Re: Case Name: Costa Mesa Sanitary District v. The State of California Our Client: Costa Mesa Sanitary District Re: Settlement Agreement and General Release Dear Mr. Krentz: Enclosed please find the executed Settlement Agreement and General Release. Please return a copy with original signatures. Please advise when the check will be issued. Thank you for your cooperation and professional courtesy in this matter and for saving the public form unnecessary legal expenses. Sincerely, HARP & BURNS LLP Alan R. Burns District Counsel _rel Enc.: Settlement Agreement and Release SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release (hereinafter "Agreement") is made and entered into by and between the parties, Plaintiff COSTA MESA SANITARY DISTRICT, (hereinafter referred to as "CMSD" or "Plaintiff") and Defendant STATE OF CALIFORNIA, acting by and through the Department of Transportation (hereinafter the "State" or "Defendant"), collectively referred to hereinafter as "the Parties." RECITALS This Agreement is made with reference to the following facts and circumstances: A. Plaintiff is the owner in fee and/or is in possession and control of a sewer line at or near 2285 Newport Boulevard, Costa Mesa, CA 92627 (hereinafter referred to as the "Subject Property"); B. On August 10, 2016, Plaintiff served the State with a Complaint. Plaintiff filed said Complaint in the Superior Court of the County of Orange, State of California, Case No. 30- 2016-00867168, and included a cause of action in inverse condemnation alleging damage to the Subject Property; C. On September 7, 2016, the State filed an Answer to the Complaint, denying liability, causation, the nature, extent, and amount of damages, and entering affirmative defenses; E. Pursuant to the settlement discussions, the Parties agreed to a settlement of the action on the terms set forth herein. This settlement agreement and release is in furtherance of the Parties' desire to resolve all disputes between themselves, to avoid further litigation, and to buy their peace as to all claims, causes of action, attorney's fees, interest claims, costs, and other expenses. The Parties have agreed to settle and compromise their differences on terms and conditions set forth below. AGREEMENT AND RELEASE NOW, THEREFORE, based upon the foregoing recitals, the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of SETTLEMENT AGREEMENT AND RELEASE 1 COSTA MESA SANITARY DISTRICT v. STATE OF CALIFORNIA CASE NO. 30-2016-00867168 which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree and stipulate as follows: 1. Consideration. Following execution of this Agreement, the State shall pay the sum of Forty One Thousand, Two Hundred and Ninety Three Dollars and Fifty Cents ($41,293.50) (hereinafter "the Settlement Amount") payable to The Costa Mesa Sanitary District. The settlement funds shall be paid by check mailed to Harper & Burns LLP, at 453 S. Glassell Street, Orange, CA 92866. The Settlement Amount is all inclusive, including but not limited to Plaintiffs' costs under Code of Civil Procedure section 1032, interest on the settlement amount, disbursements, expenses, attorney's fees, appraisal fees, and engineering fees, or other expert fees, pursuant to Code of Civil Procedure section 1036 or any other provision of law, and no further sums shall be paid to Plaintiffs by the State. 2. Release. Upon complete payment and performance by the State of all obligations set forth herein, CMSD fully and finally releases, acquits and forever discharges the State, its past, present, and future officials, employees, representatives, agents, attorneys, predecessors, successors, and assigns and all other persons, firms, corporations, associations or partnerships who derive from the State, of and from any and all claims, demands, actions, causes of action, rights, remedies, penalties, liens, damages, obligations, costs, expenses (mitigation or otherwise), attorney's fees, losses, and liabilities, of any kind or nature, whenever or however derived, foreseen or unforeseen, suspected or unsuspected, past, present, or future, or in any way arising out of or related to the acts, omissions, conditions and events described in Plaintiff's Complaint on file herein. 3. Waiver of Civil Code Section 1542. Upon complete payment and performance by the State of all obligations upon the State set forth herein, Plaintiff acknowledges this Agreement expresses a full and complete settlement SETTLEMENT AGREEMENT AND RELEASE 2 COSTA MESA SANITARY DISTRICT v. STATE OF CALIFORNIA CASE NO. 30-2016-00867168 of the action, regardless of the adequacy of the above consideration. Plaintiffs expressly understand this agreement fully releases and resolves the matters released and discharged herein, including those which may be unknown, unanticipated, or unsuspected, and hereby expressly waives any and all benefits under California Civil Code section 1542, as well as under any other statutes or common law principles of similar effect. CMSD acknowledges it has read and understands section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 4. Dismissal. Upon complete payment and performance by the State of all obligations upon the State set forth herein, Plaintiff shall dismiss the Complaint with prejudice. 5. No Reliance upon Any Statement or Representation. This Agreement is executed by the Parties without any reliance upon any statement, warranty, or representation, whether expressed or implied by any of the Parties, their attorneys or representatives. Each Party has received independent legal advice from his or its own attorneys with respect to the advisability of entering into this Agreement and of giving any release included in this Agreement. All Parties hereto have made such investigation of the facts pertaining to this Agreement herein as they deem necessary. Each Party understands that the facts with respect to which this Agreement is entered into may be different from the facts known or believed to be true. Each Party accepts and assumes the risk of the facts being different and agrees that this Agreement shall be and remain in all respects effective and not subject to termination, rescission, or reformation by virtue of any such difference in facts. 6. No Admission of Liability. The Parties represent and agree that the Agreement pertains to disputed claims and does not constitute an admission of liability by any of the Parties. SETTLEMENT AGREEMENT AND RELEASE 3 COSTA MESA SANITARY DISTRICT v. STATE OF CALIFORNIA CASE NO. 30-2016-00867168 7. Modifications. This Agreement may not be amended, canceled, revoked, or otherwise modified except by written agreement subscribed by both CMSD and the State. 8. Entire Agreement. All prior understandings in connection with or relating to this settlement are merged into this Agreement, which supersedes all prior understandings and agreements. The Parties agree, represent, and warrant that in entering into this Agreement, they are not relying upon any representation, promise, understanding, statement, or inducement not expressly set forth in this Agreement. 9. Successors and Assigns. This Agreement governs the rights, binds, and inures to the benefit of the Parties and their respective heirs, legatees, devisees, executors, successors, administrators, and assigns. 10. Terms Contractual. The terms of this Agreement are contractual in nature. The headings are for convenience only and do not limit or alter the described paragraphs in any manner. 11. Representations by Counsel. Each of the Parties affirms and acknowledges that it has read and fully appreciates and understands the words, terms, conditions, and provisions of the Agreement, is full and entirely satisfied with the same, has been represented by legal counsel of its choice in the negotiation, preparation, and execution of the Agreement, and has executed the Agreement voluntarily and of its own free will and act. Each of the Parties, by its due execution of the Agreement, represents it has reviewed each term of this Agreement with legal counsel, and that hereafter no Party shall deny the validity of this Agreement on the grounds that it did not have full and adequate legal counsel. Each Party has had the opportunity to receive independent legal advice with respect to the meaning, implications, and advisability of leaking the compromised settlement provided for herein. The Parties acknowledge they have each participated in the drafting of this Agreement SETTLEMENT AGREEMENT AND RELEASE 4 COSTA MESA SANITARY DISTRICT v. STATE OF CALIFORNIA CASE NO. 30-2016-00867168 and specifically agree that any rule of construction, to the effect that ambiguities are to be resolved against the drafting party, shall not apply to the interpretation of this Agreement. 12. Authority to Execute and Bind. Each of the Parties represents and warrants that each of the persons executing the Agreement on its behalf has full and complete legal authority to do so and thereby binds the Party on behalf of which this Agreement is executed. 13. Representation and Warranty of Persons Signing the Agreement. Each person whose signature is affixed below hereby warrants and represents that he/she is legally authorized to execute this Agreement on behalf of the designated entity. 14. Necessary Acts. The Parties agree to perform any further acts and execute and deliver documents that may reasonably be necessary to carry out the provisions of this Agreement. 15. Severability. In case any part, tern, portion or provision of this Agreement is or shall be held invalid, illegal, or unenforceable, the remaining parts, terms, portions, and provisions shall not be affected nor impaired. 16. Governing Law. The Agreement shall be construed and interpreted in accordance with and be governed by the laws of the State of California. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed and delivered, shall be an original, and all of which when executed shall constitute the same instrument. HI /// SETTLEMENT AGREEMENT AND RELEASE S COSTA MESA SANITARY DISTRICT v. STATE OF CALIFORNIA CASE NO. 30-2016-00867168 YOU ARE MAKING A FINAL SETTLEMENT. THIS IS A RELEASE. PLEASE READ BEFORE SIGNING. Dated: 0 ? 20 t;_ Dated: It (1 120 1 (a Dated: APPROVED AS TO FORM: Dated: t ty 6 Dated: COSTA MESA SANITARY DISTRICT By: COSTA MESA SANITARY DISTRICT STATE OF CALIFORNIA, by and through the Department of Transportation By: RICKY RODRIGUEZ Office Chief, Office of Right of Way & Land Surveys — District 12 HARPER & BURNS By: ALAN BURNS, ESQ. Attorneys for Plaintiff COSTA MESA SANITARY DISTRICT JEANNE E. SCHERER, Chief Counsel an TYLER L. KRENTZ, Deputy Attorney Attorneys for Defendant STATE OF CALIFORNIA, by and through the Department of Transportation SETTLEMENT AGREEMENT AND RELEASE 6 COSTA MESA SANITARY DISTRICT v. STATE OF CALIFORNIA CASE NO. 30-2016-00867168