HomeMy WebLinkAboutAtlas Allied; 2012-03-14;MUTUAL RESCISSION OF CONTRACT
This Agreement of mutual rescission of a contract made and entered into this j^^av of
^V^fv^,^>ex_^, 2012 by and between Atlas Allied, lnc.("Contractor") and the Carisbad
Municipal Water District,a Public Agency organized under the Municipal Water Act of 1911 and
a Subsidiary District of the City of CarisbadfCMWD").
The parties hereby mutually acknowledge and agree that:
On May 10, 2010. the parties entered into a contract for the installation of water meters
("Installation Contract").
The parties wish to rescind the Installation Contract.
CMWD has paid Contractor a total of $1,504,052.60 to date under the Installation Contract.
CMWD is currently holding $167,117 in retention funds.
Therefore, in consideration ofthe mutual covenants ofthe parties, the parties hereby rescind
the Installation Contract effective as of this day first written above. This agreement of mutual
rescission shall be binding upon the parties, their successors, assigns and personai
representatives. Neither party shall have any further rights or duties thereunder.
Release of CMWD: Contractor hereby releases and absolutely and forever discharges CMWD
and its Board Members, agents, contractors, employees, attorneys, successors and assigns,
and each of them, from any and all claims, demands, grievances, liabilities, debts, accounts,
obligations, costs, expenses. liens, actions and causes of action, of every kind and nature
whatsoever, existing on the effective date of this Agreement, whether known or unknown,
anticipated or unanticipated, suspected or unsuspected, which Contractor has or claims to have,
now or hereafter, against CMWD or its Board Members, agents, contractors, employees,
attorneys, successors and assigns, and each of them, arising out of or in connection with this
Agreement and the Installation Contract.
Release of Contractor CMWD hereby releases and absolutely and forever discharges
Contractor, employees, attorneys, successors and assigns, and each of them, from any and all
claims, demands, grievances, liabilities, debts, accounts, obligations, costs, expenses. liens,
actions and causes of action, of eveiy kind and nature whatsoever, existing on the effective date
of this Agreement, whether known or unknown, anticipated or unanticipated, suspected or
unsuspected, which CMWD has or claims to have, now or hereafter, against Contractor,
employees, attorneys, successors and assigns, and each of them, arising out of or in
connection with the this Agreement and the Installation Contract.
Inapplicability of Civil Code §1542: The parties acknowledge and agree that the releases
contained in this Agreement arespecial releases and that §1542 ofthe Civil Code ofthe State of
California is not applicable. Ifand to the extent it should be determined that the releases
contained in this Ageement arenot special releases, contrary to the parties' acknowledged
intention and agreement, each partyspecifically waives the benefit of the provisions of §1542 of
the Civil Code ofthe State ofCalifornia, 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.
Waiverof Unimown Claims: Each party hereby acknowledges that suchparty is aware that
such party may later discover facts in addition to or different from those whichsuch party now
knows or believes to be true with respect to the subject matter of thisAgreement and that it is
such party's intention, notwithstanding, to fully, finally and forever.settle and release all of the
claims released by this Agreement, known or unknown, suspectedor unsuspected, which now
exist, may exist or previously existed between the parties. Infurtherance of such intention, the
releases given in this Agreement shall be and shall remainin effect as a full and completed
release, notwithstanding the discovery or existence of any suchadditional or different facts. The
parties, further, accept and assume the risk that such facts maytum out to be different from the
facts now known or believed to be true by the parties and agreethat the releases given in this
Agreement shall remain in all respects effective am shall notbe subject to termination or
rescission by reason of any such difference in fact.
The parties acknowledge that CMWD will release the remainder of the retention funds under the
Installation Contract upon the execution of this Agreement by both parties.
This Agreement shall be enforced underthe laws ofthe State of California.
This is the entire agreement.
CONTRACTOR
Atlas-Allied, Inc.
By:
(sign here)
Eva Siciliani V.P. - Treasure
(print name/title)
By:
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized
under the Municipal Water Act of 1911. and
a Subsidiary District of the City of Carisbad
By:
ATTEST:
' (sign here) tOR^AIN^M. WOOD
George L. Siciliani President
(print name/title)
RAINE M. WOOD
Secretary
APPROVED AS TO FORM:
RONALD R. BALL, General Counsel
Assistant General Counsel