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HomeMy WebLinkAboutSource California Energy Services, Inc. 2007-06-14A WAIVER AND RELEASE This Agreement is made and entered on June 14, 2007 (the "Effective Date"), in Ukiah, California, by and between Source California Energy Services, a for-profit California corporation, (hereafter, "Contractor") and the City of Ukiah, a general law municipal corporation (hereafter, "City"). RECITALS: 1. On On May 10, 2006, Contractor and City entered an Agreement for Professional Consulting Services, and on June 7, 2006, a Short Form Construction Contract (collectively,"the Contract") under which Contractor was to perform construction and engineering services in relation to the clean-up, restoration, redesign and rehabilitation of the City's hydroelectric generating facility on the Coyote Dam at Lake Mendocino ("Hydro Plant"). 2. On March 8, 2007, the City and Contractor signed a letter agreeing that the maximum not to exceed amount to complete the Contract was $3,570,771.15 (the "Not to Exceed Amount"). 3. Contractor and City have signed a Project Turnover and Acceptance Agreement by which Contractor has turned over the refurbished Hydro Plant, subject to identified punch list items and the one-year warranty provided by Contractor. 4. Contractor has submitted certain invoices for work performed under the Contract, some of which are disputed by the City. Contractor has submitted invoices which exceed the Not to Exceed Amount by $211,543.98. In addition, Contractor has submitted an invoice for an additional $72,365.77 for work performed by the Contractor's subcontractor. The total of these amounts is $283,909.75 (the "Disputed Amount"). 5. Contractor claims that it is entitled to the payment of the Disputed Amount. City contends that the Contractor is not entitled to the Disputed Amount. 6. Contractor acknowledges and agrees. that the invoices already submitted to the City and the Disputed Amount constitute its complete demand for payment under the Contract and that it does not claim a right to any additional compensation for work it or its subcontractors have performed under the Contractor or in connection with the Hydro Plant on or prior to the Effective Date. AGREEMENT AND RELEASE: In consideration of and reliance upon the above -recited facts and the terms and conditions as further stated herein, the parties hereby agree as follows. June 14, 2007 1 1. AGREEMENT. Within ten (10) days of the Effective Date, the City shall pay Contractor $131,823.67 above the Not to Exceed Amount in full and complete settlement of any claims by Contractor for compensation or payment under the Contract or in relation to work performed on or prior to the Effective Date by Contractor or its subcontractors in connection with the Hydro Plant. 2. RELEASE OF CLAIMS. Upon receipt of the payment as provided in paragraph 1, Contractor, and its owners, shareholders, officers, employees and agents, absolutely discharge and release the City, and its officers, agents and employees, successors and assigns from any and all claims, demands, damages, debts, liabilities, obligations, costs, expenses, liens, actions, attorney's fees and causes of action arising out of the Contract or the performance on or prior to the Effective Date of work by Contractor or its subcontractors on or connected to the Hydro Plant, whether in law or in equity, known or unknown, suspected or unsuspected, which they may have, whether or not asserted prior to the Effective Date. 3. COVENANT NOT TO SU commence or prosecute, or prosecution of any claim, whatsoever that is based liability, obligation, cost hereby released. E. Contractor covenants that it will never assist in any way in thecommencement or demand, or cause of action of any nature upon any claim, demand, damage, debt, expense, lien, action, or cause of action 4. WAIVER OF SECTION 1542 OF CALIFORNIA CIVIL CODE., Contractor has considered the possibility that it may not now fully know the number or magnitude of all the claims that it has or may have had against the City, or its officers, agents or employees arising out of or relating to the claims hereby released, but, nevertheless, intends to assume the risk that it is releasing such unknown claims. Contractor 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 Section 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. 5. COMPROMISE. It is understood and agreed that this Agreement is the result of a good faith compromise settlement of disputed 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. 6. REPRESENTATION BY COUNSEL. This Agreement is entered into June 14, 2007 K freely and voluntarily. The parties hereto acknowledge that they have been represented by counsel of their own choice, if any, in the negotiation that preceded the execution of this Agreement, and in connection with the preparation and execution of this Agreement. Each of the parties hereto executes this Agreement with full knowledge of its significance and with the express intention of effecting its legal consequences. 7. 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 concerning the terms of this Agreement by counsel of its choice, if any, and is not relying upon any representation not specified herein. 8. 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. 9. 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 under the laws of any other jurisdiction 10. 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. 11. 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. 12. 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. 13. 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 June 14, 2007 3 3. r whose behalf they execute this Agreement. 14. 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. 15. EFFECTIVE DATE. The parties hereto deem this Agreement to be signed and of binding legal effect as of the Effective Date. SOURCE CALIFORNIA ENERGY SERVICES By: ohn Anthoni, Executive Director By: II�� David J..,cMillan, Executive Director CITY OF UKIAH By: Candace Horsley, City Manager Attes Lin Brow ting City Clerk June 14, 2007 4