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HomeMy WebLinkAbout2010 CON JC Towing - Termination Towing / Impound ServicesTERMINATION AGREEMENT AND RELEASE OF ALL CLAIMS THIS TERMINATION AGREEMENT AND RELEASE OF ALL CLAIMS [Release] is made as of July 20, 2010, by and between JC TOWING, Inc., [Contractor], and CITY OF NATIONAL CITY [City], [Contractor and City referred to as "The Parties"), who agree as follows: RECITALS A. The Parties entered into the Agreement By and Between City of National City and JC Towing, Inc. for Towing and Impound Services ("Agreement") on about March 21, 2006 and the Amendment to the Agreement for Towing and Impound Services By and Between the City of National City and JC Towing, Inc. By Amending Section 3.0 of Said Agreement to Extend the Term Thereof For Four Six Month Periods, From April 1, 2009 to September 30, 2011 ("Amendment") on March 17, 2009. B. Contractor now wishes to withdraw from and terminate the agreements. City is amenable to having Contractor withdraw from the agreements and is willing to agree to the termination of the agreements. C. The Parties now seek to terminate the Agreement and the Amendment, and resolve any outstanding issues between them. DEFINITIONS As used in this Agreement, the following words and phrases have the meanings stated: Associated Entities and Persons. "Associated Entities and Persons" includes, but is not limited to, spouses, heirs, executors, administrators, representatives, successors -in -interest, assigns, affiliates, subrogees, agents, employees, attorneys, former employees, or similarly related entities or persons. Claims. "Claims" shall include all claims, rights, liens, demands, liabilities, indebtedness, agreements, promises, and causes of action (asserted, unasserted, known, unknown, or contingent) which arise out of the allegations set forth in the Complaint described in paragraph C, above, and which have accrued as of the date of this Agreement. Costs. "Costs" shall include all costs, losses, liabilities, damages, judgments, expenses, fees, attorneys' fees, and obligations related to the subject of the complaint referenced herein. AGREEMENT NOW, THEREFORE, the Parties agree as follows: 1. Termination of Agreement and Amendment: 1.1 Termination: The Parties agree that the Agreement and the subsequent Amendment are terminated, effective July 20, 2010. Any and all obligations to each other cease as of this date, with the following exceptions: i) any fees, payments, and/or moneys currently due to the City, if any, as specified in Paragraph 1.3; and, ii) autos currently in Contractor's custody as specified in Paragraph 1.2. 1.2 Autos Currently Impounded: To the extent there are any vehicles impounded pursuant to City direction and impounded during the Agreement, those vehicles will be processed and subject to the processes originally set forth in the Agreement. Once all of those vehicles have completed that process, including up to either auction or destruction, there will be no further obligation by Contractor to City regarding any vehicles. 1.3 Fees, Payments, or Money Due to City: To the extent there are any amounts currently due to the City, Contractor shall pay those to the City. 1.4 Notice of Termination Satisfied: The Agreement at paragraph 2.21 contains a Notice of Termination requirement, in the event the City terminates the Agreement. While the City is agreeing to Contractor's termination of the Agreement and Amendment, to the extent notice would be required under paragraph 2.21, it is deemed satisfied under this Release. 1.5 Waiver of Attornev's Fees and Costs: Each party shall bear its own respective attorneys' fees and costs arising from or related to the Complaint, the underlying facts, and in connection with the preparation of this Agreement. 1.6 Future Responses to Requests For Proposals: Nothing in this Release shall prevent Contractor from responding to and/or bidding on future towing and impound contracts with the City. 2. RELEASE OF CLAIMS. 2.1 Release. For and in consideration of the terms described above, the Contractor on behalf of itself, its heirs, executors, administrators, assigns, and Associated Entities and Persons, hereby fully releases and discharges City and each of its agents, sureties, officials, officers, directors, representatives, insurers, attorneys, employees, predecessors and assigns, jointly and severally, from any and all claims, demands, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorneys' fees and damages of whatsoever character, nature and kind, known or unknown, in law or in equity, arising from or related to the Complaint, or the underlying facts thereof. 2.2 Waiver of Civil Code section 1542. It is the intention of the Contractor that the foregoing release shall be effective as a bar to all claims, demands, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorneys' fees and damages of whatsoever character, nature and kind, known or unknown, suspected or unsuspected, hereinabove specified to be so barred; and in furtherance of this intention the Contractor expressly waives any and all rights and benefits conferred upon him by the provision of Section 1542 of the California Civil Code, which are 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." -2- It is understood and agreed that the release provision of this subsection is a full and final release of all liability, claims, demands, actions, causes of action, and rights of very nature and kind and that it extinguishes claims that are known, unknown, foreseen, or unforeseen. The Contractor understands and acknowledges the significance and consequence of this specific waiver of Section 1542 and assumes full responsibility for any injuries, damages, losses, or liability that he may incur. 3. MISCELLANEOUS. 3.1 Covenant not to sue. Each of the Parties under this Agreement agrees that such party shall not make, assert or maintain any action, demand or lawsuit against any other party, or the other party's Associated Entities and Persons, for claims released pursuant to this Agreement. 3.2 Further Assurance. Each party shall execute all documents and do all acts reasonably necessary to carry out the intent of this Agreement. 3.3 Successors. The provisions of this Agreement shall be deemed to obligate, extend to, and inure to the benefit of, the successors, assignees, transferees, grantees, and indemnities of each of the parties to this Agreement. 3.4 Representations Regarding Authority. The parties represent and warrant that they are legally authorized and competent to execute this Agreement, which is intended to be a legally binding contract dealing with the release and/or conveyance of certain valuable, important rights. Each party represents and warrants that it has not assigned, transferred, or purported to assign or transfer to any person or entity any claim released and each party agrees to defend, indemnify, and hold harmless the other party from any claims that arise as a result of anyone asserting such a claim. 3.5 Independent Counsel. Each of the parties to this Agreement acknowledges and represents that it has been represented by independent counsel of its own choice through all negotiations which preceded the execution of this Agreement, and that it is freely and voluntarily executed this Agreement with the consent, and upon the advice, of independent counsel. Each of the parties to this Agreement further acknowledges that they have read this Agreement and have had its terms and consequences explained by independent counsel. 3.6 California Law. This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced, and governed by and under the laws of the State of California. 3.7 Attorneys' Fees. If any dispute arises pertaining to this Agreement, the prevailing party shall be entitled to recover its costs and attorneys' fees. 3.8 Interpretation. Wherever the context so requires, the singular number shall include the plural; the plural shall include the singular; and the masculine gender shall include the feminine and neuter genders. No provision of this Agreement shall be interpreted against a party to this Agreement because that party or his or its legal representative drafted that provision. - 3 - 3.9 Captions. The captions by which the sections and subsections of this Agreement are identified are for convenience only and shall have no effect upon its interpretation. 3.10 Integration. This Agreement (after full execution) memorializes and constitutes the entire agreement and understanding between the parties, and supersedes and replaces all prior negotiations, proposed agreements, and agreements, whether written or unwritten. This Agreement may be amended or modified only by a writing signed by all parties to this Agreement which specifically states it is an amendment to this Agreement. 3.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. 3.12 Release Not Admission Of Liability. It is expressly acknowledged and agreed that no party admits, expressly or impliedly, any fact or liability of any type or nature with respect to any matter, or the sufficiency of any claims, allegations, assertions, or positions of any party; no party has made any such admissions; and this Agreement is entered into solely by way of compromise and settlement only. 3.13 Forum Selection. If any action is brought by any party arising out of or in any way related to any of the terms, covenants and conditions of this Agreement, each party agrees that the forum for such action or actions shall be a court of competent jurisdiction within the County of San Diego, State of California. 3.14 Assignments. The parties hereby represent that they have not previously assigned, transferred, or purported to have assigned or transferred in any manner, the claim held by it, him or her against the other party. Each party agrees to indemnify and hold harmless the other and pay the other's attorneys' fees in the event that any individual or entity asserts a purported written assignment of a claim from the party to that individual or entity. 3.15 Survival Of Representations and Warranties. The representations, warranties, and releases set forth in this agreement shall remain in full force and effect and shall survive the consummation of this Agreement. Dated: /9(9` 7/69 Dated: August 24, 2010 JC Towing, Inc. G. John Clark, IV, President CITY OFIATIONAL CITY By: Cliiris Zapata City Mana -4- APPROVED AS TO FORM: Dated: I "1 / 1 D By: Claudia Gaci City Attorney -5- NNTIONAL CITY I14coRPORATED CALIFORNIA OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone • 619-336-4229 fax JC TOWING, INC. Termination Agreement and Release of All Claims Ginny Orcutt (City Attorney) Forwarded Copy of Agreement to Contractor