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HomeMy WebLinkAboutMcCarty, Darrin; DBA McCarty's Auto Body 2011-05-04AGREEMENT AND RELEASE Darrin McCarty ("McCarty"), doing business as McCarty's Auto Body and the City of Ukiah ("City"), a general law municipal corporation, enter this settlement Agreement and Mutual General Release ("Agreement") on 2011 ("Effective Date") in Ukiah, Mendocino County, California. RECITALS 1. Between July 2006 and January 2011 McCarty was billed and paid $45,192.84 more for electricity supplied by City's electric utility than he and his business actually used. The overcharge resulted from a mix up in reading electrical meters in a building McCarty's business shared with DFM Car Stereo, Inc. 2. The City has agreed to refund to McCarty without interest the amount of the overcharge and McCarty has agreed to accept this payment in full satisfaction of his claim for reimbursement. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows. 2. INCORPORATION OF RECITALS. The Recitals contained in paragraphs 1-2 are incorporated by reference into the body of this Agreement. 3. BINDING EFFECT. This Agreement governs the rights of, binds, and inures to the benefit of each and every party hereto; their respective predecessors and successors; their past, present, and 1 f uture subsidiaries, affiliates,joint ventures, partnerships, joint venturers, partners, assigns, officers, directors, shareholders, employees, agents, consultants, subcontractors, insurers, sureties, attorneys, administrators, executors, nominees, heirs, and representatives; and all others acting on their behalf or on behalf of any of them. It binds the City and McCarty. 4. AGREEMENT. On or before May 16, 2011, City shall pay McCarty $45,192.84. 5. RELEASE OF CLAIMS. In consideration of the performance of paragraph 4 of this Agreement, McCarty absolutely discharges and releases City, and its officers, agents and employees, from any and all claims, demands, damages, debts, liabilities, obligations, costs, expenses, liens, actions, attorney's fees and causes of action in any way connected with City charges for electrical service at his business for any period prior to the Effective Date, whether any such claim is currently known or unknown, suspected or unsuspected, and whether or not asserted prior to the Effective. 6. COVENANT NOT TO SUE. McCarty covenants that he will never commence or prosecute, or assist in any way in the commencement or prosecution of any claim, demand, or cause of action of any nature whatsoever that is based upon any claim, demand, damage, debt, liability, obligation, cost, expense, lien, action, or cause of action hereby released. 2 7. WAIVER OF SECTION 1542 OF CALIFORNIA CIVIL CODE. McCarty has considered the possibility that he may not now fully know the number or magnitude of all the claims related to the provision of electrical service at his business prior to the Effective Date that he has or may have had against the CITY, or its officers, agent or employees, but, nevertheless, intends to assume the risk that he is releasing such unknown claims. McCarty agrees that this Agreement is a full and final release of any and all such claims, and expressly waives, as to such claims, the benefits of Sections 1542 of the California Civil Code, which provides: 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. 8. COMPROMISE. It is understood and agreed that this Agreement is the result of a good faith compromise settlement of any potential claims, and that this Agreement and the releases contained herein shall not be taken or construed to be an admission of any liability, responsibility, fault, or wrongdoing by any of the parties hereto. 9. REPRESENTATION BY COUNSEL. This Agreement is entered into freely and voluntarily. The parties hereto acknowledge that they have been represented by counsel of their own choice or had ample opportunity to secure such representation in the negotiations that preceded the execution of this Agreement and in connection with the preparation and execution of this Agreement. Each of the parties 3 hereto executes this Agreement with full knowledge of its significance and with the express intention of effecting its legal consequences. 10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto pertaining to the settlement of the disputes and obligations between the parties. This Agreement supersedes all prior and contemporaneous agreements not specifically identified in this Agreement, and all prior representations and understandings of the parties, which are merged into this Agreement. Each party has made its own independent investigation of the matters settled, has been advised or had ample opportunity to secure advice concerning the terms of this Agreement by counsel of its choice, and is not relying upon any representation not specified herein. 11. ATTORNEYS' FEES. In the event of any dispute between the parties hereto arising out of, or in connection with, the provisions of this Agreement or any documents executed and delivered pursuant to this. Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs of suit, and necessary disbursements, in addition to whatever damages or other relief said prevailing party is entitled to in connection with such dispute. 12. APPLICABLE LAW. This Agreement shall be construed under and shall be deemed to be governed by the laws of the State of California, without giving effect to any principles of conflicts of law if such principles would operate to construe this Agreement 4 under the laws of any other jurisdiction. 13. CONSTRUCTION OF AGREEMENT. This Agreement is the product of negotiation and preparation by and among each party hereto and its attorneys. Therefore, the parties acknowledge and agree that this Agreement shall not be deemed to have been prepared or drafted by one party or another, and that it shall be construed accordingly. 14. MODIFICATION OF AGREEMENT. No supplement, modification, waiver or amendment with respect to this Agreement shall be binding unless executed in writing by the party against whom enforcement of such supplement, modification, waiver, or amendment is sought. 15. COUNTERPARTS OF AGREEMENT. This Agreement may be signed in counterparts by the parties hereto and shall be valid and binding on each party as if fully executed all on one copy. 16. SIGNATORIES' AUTHORITY. The signatories to this Agreement on behalf of all the parties hereto warrant and represent that they have authority to execute this Agreement and to bind the parties on whose behalf they execute this Agreement. 17. REASONABLE COOPERATION. The parties hereto shall reasonably cooperate with each other, including executing all necessary further documents, if any, to carry out the purpose and intent of this Agreement. 18. EFFECTIVE DATE. The parties hereto deem this Agreement to be signed and of binding legal effect as of the Effective Date. 5 CITY OF UKIAH By. e Chambers, City Manager ATT ST: "O J Anne Currie, City Clerk DARRI MCCARTY