HomeMy WebLinkAboutCounty of Mendocino 2017-12-22COU No. 1617-128
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is
made and entered into this , A day of 2016, by and
between COUNTY OF MENDOCINO ("Plaintiff') and SOLID WASTE SYSTEMS,
INC. ("SWS") and CITY OF UKIAH ("City"). SWS and City are collectively
referred to as "Defendants" and Plaintiff and Defendants are collectively referred
to as "Parties".
MCl-ITAI C
A. Plaintiff filed and served a Complaint against Solid Waste Systems, Inc., in
Mendocino Superior Court Case No. SCUK CVG 11 59459 on December 15,
2011 seeking to recover from Defendant for breach of contract, seeking an
accounting and seeking an injunction and a First Amended Complaint on January
4, 2012, alleging the same causes of action. On February 8, 2013, Plaintiff filed a
Second Amended Complaint naming the City of Ukiah as an additional defendant
and alleging breach of contract, accounting, specific performance, declaratory
relief, and permanent injunction
B. The Parties desire to enter into this Settlement Agreement in full
settlement and discharge of all claims which have, or might be made, by reason
of the allegations described above.
AGREEMENT
The Parties hereby agree as follows:
1.0 Release and Discharge
1.1 Upon full execution of this Release, Plaintiff shall dismiss, with
prejudice, its lawsuit described in the above Recitals, specifically, SCUK CVG 11
59459 filed in Mendocino County Superior Court in Ukiah, California.
1.2 Plaintiff expressly releases, waives, and relinquishes and forever
discharges the other Parties from all claims, actions, liabilities, and causes of
action, of every nature and kind whatsoever, whether known or unknown,
suspected or unsuspected, asserted or unasserted, or hereafter discovered or
Page 1 of 4
00,
ascertained, in law or equity, by reason of any matter, cause or thing whatsoever,
it has, or may have, with respect to the claims set forth in the Complaints filed in
the lawsuit, and those claims that County could have included in the lawsuit, or
which may hereafter accrue or otherwise be acquired by it, on account of, or in
any way grow out of the allegations described in the Recitals above.
1.3 This Release and Discharge shall also apply to Defendants' past,
present and future officers, directors, stockholders attorneys, agents, servants,
representatives, employees, subsidiaries, affiliates, partners, predecessors and
successors -in -interest, and assigns and all other persons, firms, or corporations,
with whom any of the former have been, are now, or may hereafter be, affiliated.
1.4 This Release on the part of Plaintiff shall be a fully binding and
complete settlement between Plaintiff, Defendants, their assigns, and
successors.
2.0 No Admissions.
2.1 Parties acknowledge and agree that the Release set forth above is
a general release. It is understood and agreed by the Parties that this settlement
is a compromise of a disputed claim, and the settlement is not to be construed as
an admission of liability on the part of any party.
3.0 Attorney's Fees and Costs:
Each Party hereto shall bear all attorney's fees and costs arising
from the actions of its own counsel, if any, in connection with the underlying
lawsuit, this Settlement Agreement, the matters and documents referred to
herein, and all related matters. This includes any statutory attorney fees
authorized by any state or federal law.
4.0 Representation of Comprehension of Document
In entering into this Settlement Agreement, the Parties represent
that they relied upon the advice of attorneys, who are the attorneys of the Parties'
own choice, concerning the legal consequences of this Settlement Agreement;
that the terms of this Settlement Agreement have been completely read and
explained to the Parties; and that the terms of this Settlement Agreement are
fully understood and voluntarily accepted by the Parties.
Page 2 of 4
r
5.0 Governing Law
This Settlement Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
6.0 Section 1542 of the Civil Code of the State of California
The undersigned Plaintiff does hereby waive any and all rights
based upon the provisions of Section 1542 of the Civil Code of the State of
California, which reads 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.
For your protection, California law requires the following to appear on this form:
ANY PERSON WHO KNOWINGLY PRESENTS A FALSE OR
FRAUDULANT CLAIM FOR THE PAYMENT OF A LOSS IS
GUILTY OF A CRIME AND MAY BE SUBJECT TO FINES AND
CONFINEMENT IN STATE PRISON. (Cal. Ins. Code, § 1871.2)
7.0 Entire Agreement and Successors -In -Interest
This Settlement Agreement contains the entire agreement between
Plaintiff and Defendants with regard to the matters set forth herein and shall
be binding upon and inure to the benefit of the executors, administrators,
personal representatives, heirs, successors and assigns of each.
IN WITNESS WHERFOF, the Parties, by their duly authorized representatives.
have executed this Agreement as of the date(s) set forth below.
Dated: 2016 Solid Waste Systems, Inc.
By: �'1 `� j t✓�
Its: 5
Dated: Z -Z /(/ 2016 City of Ukiah
Bv: �/W-) ?
Mayor Jim O. Brown
Page 3 of 4
Dated: t �– , 2016
Dated: DW,. 2 , 2016
COUNTY OF MENDOCINO BOARD OF
SUPERVISORS
BY. —�
JohnJNIcCowen, Vice -Chair
COUNTY OF MENDOCINO
RISK MANAGEMENT
By:
Alan Flora, Risk Manager
APPROVED AS TO FORM AND CONTENT:
Dated: Z �' , 2016 By: 14
ames E. Kemp, A orney at Law
ttorney for SWS Inc.
Dated: 2016 By:
Davi apport, Attorney at Law
Attorney for City of Ukiah
Dated: 12 / , 2016 By:
Katharine L. Elliott, County Counsel
Attorney for Mendocino County
I hereby certify that according to
the provisions of Government Code
sections 25103, delivery of this
document has been made.
CARMEL J ANGELO
NOV 11Clerk of the Board
By-:
y
ATTEST:
Carmel J. Angelo, Clerk of the Board.
NOV 14 2016 Mendocino County Board of Supervisors
Page 4 of 4 �-