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05-053, SVACA - Settlement and Mutual Release of Claims SETTLEMENT AND MUTUAL RELEASE OF CLAIMS AGREEMENT This Settlement and Mutual Release of Claims Agreement ("Agreement") is made as of ~, 2005 by and between the Silicon Valley Animal Control Authority ("SV ACA") and the City of Cupertino (the "City") (collectively the "Parties"). RECITALS A. The City was an original member agency of SV ACA, an entity created in July 2000 by execution of the Joint Powers Agreement creating the Silicon Valley Animal Control Authority (the "JP A") whose mission is to provide animal control services ("Animal Control Services"). B. Section 9.2 ofthe JP A provides for voluntary withdrawal by a member agency, and Section 9.4 calls for reimbursement to a withdrawing agency and sets forth a process by which to determine the amount of joint facilities, assets, cash reserves, and other items to be reimbursed to a withdrawing agency. C. By letter dated September 16, 2003, the City gave notice of its decision to withdraw from the JP A, effective June 30, 2004. D. The City has agreed to accept reimbursement for its withdrawal from SV ACA in the amount of$122,232 which was determined by the calculation method approved by the SV ACA Board of Directors at its regular meeting of June 30, 2004. AGREEMENT In consideration of the promises and mutual covenants and agreements contained herein, the Parties agree as follows: 1. Payment. Within 5 working days of SV ACA' s receipt of this Agreement executed by the City, SV ACA will pay the City the total amount of One Hundred Twenty-Two Thousand Two Hundred Thirty-Two Dollars Exactly ($122,232). 1118107.1 2. General Release. The Parties desire to provide for a final and binding resolution of all outstanding issues and potential claims related to the JP A, the Animal Control Services and the relationship between SV ACA and the City (hereinafter collectively referred to as "JP A Matters"). This mutual agreement to release all claims, whether known or unknown, is a material inducement to both Parties to enter into this Agreement. Both SV ACA and the City agree that there is adequate consideration for all of the promises, releases, covenants and obligations set forth in this Agreement. Accordingly, each Party hereby releases and forever discharges the other Party, its officers, directors, employees, attorneys, agents, and any and all other persons or entities who have acted on its behalf, from any and all claims, demands, warranties, actions, causes of action, obligations, liens, agreements, loss, damages, cost, expenses and any liabilities of any nature whatsoever, whether or not now known, anticipated, suspected or claimed, which arise out of, are based upon, or are in any way connected to JP A Matters, save and except the obligations set forth in this Agreement. 3. Waiver of California Civil Code Section 1542. The Parties acknowledge that there is a risk that, subsequent to the date of this Agreement, they may incur, suffer or sustain injury, loss, damage, costs, attorneys' fees, expenses, or any of these, which are in some way caused by and/or connected to JP A Matters, and which are unknown and unanticipated at the time this Agreement is signed, and which are not presently capable of being ascertained. It is nevertheless expressly understood and agreed by the Parties that by entering into this Agreement, they expressly waive all rights under Section 1542 of the Civil Code of California which arise out of, are based upon, or are in any way connected to JP A Matters. Said section 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 DEBTORS. 2 1118107.1 4. No Admission. Neither the terms of this Agreement nor any action taken under it shall constitute or be construed as an admission by either Party of any liability or fault on its part. The execution of this Agreement, the negotiations leading to its execution and any action taken pursuant to its terms shall not be admissible for any purposes in any proceeding except a proceeding to enforce the terms of this Agreement. 5. Costs and Attorneys' Fees. Each Party shall be responsible for the payment of its 'own costs, attorneys' fees, and all other expenses incurred in connection with this Agreement and all matters released herein. 6. Coyenant Not to Sue. The Parties understand and agree that they will not commence, maintain, or prosecute against the other party, its officers, directors, employees, attorneys, agents, and any and all other persons or entities who have acted on its behalf, any court action or other legal proceeding that is based upon any claim, demand, cause of action, damage, liability, obligations, loss or expense released in Paragraph 2 of this Agreement. The parties further understand and agree that they will not execute or seek to impose, collect or recover upon or otherwise enforce any judgment, warrant or attachment against the other party, its officers, directors, employees, attorneys, agents, and any and all other persons or entities who have acted on its behalf on account of or arising from any such claims, demands, causes of action, damages, liabilities, obligations, losses and expenses, except those that may arise from this Agreement or those unrelated to IP A Matters. 7. Indemnity and Attorneys' Fees. Should either Party breach any of the provisions of this Agreement, the breaching Party shall indemnify and hold harmless the other Party from and against all claims, causes of action, obligations, damages and liabilities, including court costs, consultants' fees, and attorneys' fees, arising from or in connection with the breach. 3 1118107.1 In any litigation for the breach of or to enforce a provision of this Agreement, the prevailing party shall also recover its costs, non-statutory expenses, and attorneys' fees. 8. California Law Applies. This Agreement shall be construed by and enforced in accordance with the laws of the State of California. 9. Successors and Asshms. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties, together with its officers, directors, employees, attorneys, agents, and any and all other persons or entities who have acted on its behalf and its predecessors-in-interest, successors-in-interest, and subrogees. 10. Authorities to Execute the Al!reement. The Parties represent and warrant that they have the sole right and exclusive authority to execute this Agreement and that they have not sold, assigned, transferred, conveyed, or otherwise disposed of any claim or demand against the other Party relating to any matter covered by this Agreement. 11. Entire Al!reement. The Parties agree that the terms of this Agreement are contractual and are not mere recitals. Each Party further declares and represents that no promise, inducement, or agreement not expressed herein has been made by the other Party to induce it to enter into this Agreement. This Agreement constitutes the entire agreement between the Parties as to its subject matter and supersedes any and all representations, promises and understandings of any kind, whether oral or written. The Parties agree that this Agreement may not be altered, amended, modified or otherwise changed except by a written amendment executed by each of the Parties. 12. Each Party. Each Party declares that prior to the execution of this Agreement, it has apprised itself of sufficient information to intelligently exercise its judginent in participating in the drafting of, deciding on the contents of, and determining whether to execute this Agreement. Both Parties represent that the contents of this Agreement have been explained to 4 1118107.1 SILICON VALLEY .iliIMAL CONTROL AGENCY CITY OF CUPERTINO ALL AMOUNTS AS OF JUNE 30, 2004 CALCULATION OF DISTRIBUTABLE NET EQUITY Contributions Fiscal Year Percent Amount 2001 0.1019 $56,198 2002 0.1 ] 89 242,453 2003 0.124098 218,468 2004 0,1636 230,715 Totals $747,834 Other Revenues -Add. $1,914 15,624 21,576 25,679 CA) $64,793 City's Share Of Operating 'Expense .Deduct- $23,832 196,425 217,008 253.l30 $690,395 (A) Other Revenue does not include Thomas Road Project contributions 0;$648,043 by the 3 remaining members (Cil)' of Santa Clara, City of Campbell and the City of Monte Sereno). SCHEDULE B Distributable Retained on Earnings Withdrawal $34,281 S34,281 61,652 6],652 23,035 23,035 3,264 3,264 $122,232 $ 122,232