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Home My WebLink AboutPG&E - Release of Claims .........O.f.(jf""... .' ~~........... {-'P, . /..~.......... -~.~... f v/ ".) - '1 : \\:\<E~~;} * j ............................ ." ctCitp of ~ilrop 7351 Rosanna Street Gilroy, California 95020-6197 Telephone (408) 846-0400 Facsimile (408) 846-0500 http://www.ci.gilroy.ca.us March 2, 2010 Rich D. Yamaguchi Pacific Gas and Electric Company Meter to Cash 885 Embarcadero Dr West Sacramento, CA 95605 Re: Mutual Release of Claims Regarding PG&E Customer No. XXXXXX7055-2 Dear Rich: This letter serves as the Mutual Release of Claims Regarding PG&E Customer No. XXXXXX7055-2 ("Release") is entered into by and between the City of Gilroy, a municipal corporation (the "City") and Pacific Gas and Electric Company, a California corporation ("PG&E"). City and PG&E are sometimes referred to in this Release as the "Parties." The City's Utility User Tax Ordinance set forth in Chapter 26B of the Gilroy City Code establishes a Utility User's Tax (UUT). PG&E, as a service supplier, collects and remits the UUT to the City from service users using electricity and gas in the City. Beginning in August, 2003, and continuing through May, 2007, PG&E collected and remitted UUT to the City based on sales of electricity and gas to a large PG&E customer, referred to hereinafter as PG&E Customer No. XXXXXX7055-2, that was located outside the boundaries of the City. Disputed claims have arisen between the Parties relating to: 1) PG&E's erroneous collection and remittance ofUUT associated with sales to PG&E Customer No. XXXXXX7055-2 in the amount of$171,579.19; 2) PG&E's actions in 2007 and 2008 in taking certain credits against UUT collected and remitted to the City to account for the prior erroneous collection and remittance ofUUT associated with PG&E Customer No. XXXXXX7055-2 in the amount of$71,491.35; and 3) PG&E's overpayment of franchise fees based on the gross receipts associated with PG&E Customer No. XXXXXX7055-2 in the amount of $29,023.48; (The foregoing claims shall be referred to in this Release as the "Matter") The City and PG&E desire to finally resolve all claims arising out of the Matter without any admission of liability and to avoid the expense of further transaction costs and litigation. The Parties agree as follows: -1- 1. In full and complete resolution of the Matter, the City agrees to accept the credits taken by PG&E in 2007 and 2008 as an appropriate adjustment for 1) PG&E's erroneous collection and remittance ofUUT associated with sales to PG&E Customer No. XXXXXX-7055-2 in the amount of $71,491.35; and 2) PG&E's overpayment of franchise fees based on the gross receipts associated with PG&E Customer No. XXXXXX-7055-2 in the amount of $29,023.48. PG&E agrees that such prior credits shall constitute its full and complete payment for any losses arising out of the Matter. 2. In consideration of the resolution of the Matter and in consideration of the covenants, promises, terms and conditions herein, each Party, on behalf of themselves and all of their assigns, agents, representatives, employees, attorneys and insurance carriers, hereby releases and forever discharges the other Party to this Release, including their assigns, agents, representatives, employees, attorneys and insurance carriers, of and from all claims, demands, controversies, actions, causes of action, obligations, damages, liabilities, costs, (including attorneys' fees) that arise or may arise out of the following: (a) the Matter; and (b) PG&E's actions or omissions relating to the collection and remittance ofUUT associated with PG&E Customer No. XXXXXX7055-2, including any alleged failure to comply with the City's Utility User Tax Ordinance and Gilroy City Code Section 1.8 et seq. 3. In regard to the released matters, the City and PG&E knowingly, voluntarily, and unconditionally waive the provisions of Section 1542 of the Civil Code of the State of California, which provides: "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." 4. Each Party declares that prior to the execution of this Release, he, she or it or his, her or its duly authorized representatives have apprised themselves of sufficient relevant data, either through experts or other sources of their own selection, in order that each Party might intelligently exercise its judgment in deciding whether to execute, and in deciding on the contents of, this Release. Each Party assumes the risk that facts, other than those facts that are represented or warranted to be true in this Release, may later be found to be other than or different from the facts now believed by it to be true. Each Party declares that its decision to execute this Release is not influenced by any representation not contained in this Release. 5. Neither the transfer of any consideration, the doing of any of the acts referred to in this Release, nor anything else contained in this Release shaH be construed to be an admission on the part of any of the Parties of any liability for or merit of any claims asserted by any of the other Parties. The Parties deny all such claims. 6. Each Party represents and warrants that it has the sole right and exclusive authority to execute this Release, and that it has not sold, assigned, transferred, conveyed, or -2- otherwise disposed of any claim or demand against the other relating to any matter covered by this Release. Each Party represents that it is duly authorized to enter into this Release, and each person signing on behalf of an entity represents that he or she is duly authorized to sign on behalf of that entity. 7. This Release shall be construed in accordance with, and governed by, the laws of the State of California applicable to contracts between California residents made and to be performed in California. 8. The Parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Release. In cases of uncertainty, this Release shall be constJued without regard to which of the Parties caused the uncertainty to exist. 9. Nothing in this Release is intended to or shall confer any benefiiSs rights or remedies on any person or entity other than the persons and entities expressly identified herein. 10. This Release may be executed in multiple counterparts, each of which shall be deemed an original, and counterpart signature pages may be ~bled to form a single original document. The Parties agree that signatures received via facsimile transmission shall in all respects be deemed to be original signatures. 11. This Release sets forth the entire understanding of the Parties relating to the transactions it contemplates, and supersedes all prior understandings relating to them, whether written or oral. There are no obligations, commitments, representations or warranties relating to them except those expressly set forth in this Release. 12. No amendment of: supplement to or waiver of any obligations under or provisions of this Release will be enforceable or admissible unless set forth in a writing signed by the Party against which enforcement or admission is sought. Dated: ~ Y' ,2010 Y OF GllROY By: Name:~ ::r. ~\I...o Tdle: (llt ~ G3- Dated: M~ I f .2010 PACIFIC GAS AND ELECTRIC COMPANY ~r4Y!j~. By: Name: ~~ ~V 'f J!\o1 A 6 l:.4~, . Title: 5(L OJ ~ ~cn:n.. rz:> Vlf311- -4-