HomeMy WebLinkAbout03- City Attorney RING & GREEN
ATTORNEYS AT LAW
1900 AVENUE OF THE STARS, SUITE 2300
LOS ANGELES, CALIFORNIA 90067
ROBERT A. RING TELEPHONE (310) 201-0777 FAX 13101 556-1346
SUSAN H. GREEN
October 11, 1996
LOM3-1
Huston Carlyle, Esq. '
City Attorney's Office
City of San Bernardino
300 North I'D" Street
San Bernardino, California 92418
Re: Leo Wenzel - Loma Linda Towing
Dear Mr. Carlyle:
This confirms that in accordance with our telephone conversation today that
pursuant to the terms of the Settlement Agreement and Mutual Release of Claims entered into
between the City of San Bernardino and Leo Wenzel dba Loma Linda Towing dated September
9, 1996, that Leo Wenzel dba Loma Linda Towing has withdrawn and hereby withdraws his
claim for damages filed with the City of San Bernardino on or about August 4, 1996.
This furthermore confirms that although the signature block for Amy Greyson of
the Law Firm of Brunick, Alvarez & Battersby is provided for on the Settlement Agreement
and Mutual Release of Claims between the City of San Bernardino and Leo Wenzel dba Loma
Linda Towing dated September 9, 1996, Ms. Greyson's signature was not and is not necessary
since my office signed the Agreement as the attorney on behalf of Leo Wenzel dba Loma Linda
Towing. While I added the signature block for Amy Greyson as a matter of courtesy, since
neither she nor her law firm was directly involved in the final negotiations which consummated
the Settlement, her signature is neither necessary nor requested.
This confirms that we have agreed for administrative ease, to simply rely upon
our fully executed and enforceable Settlement Agreement as it is and do nothing further
regarding the signature block I provided for Amy Greyson.
Do not hesitate to contact me if you have any uestions regarding the above.
Your courtesy and cooperation in this matter is ap reciat
Ve t y rs
Res 96- �7 j
e . Rang
RAR:ce
cc: Loma Linda Towing
Attn: Leo Wenzel
Amy Greyson, Esq.
2\Lom3\SanBernardino\Car1y1e
I AGREEMENT FOR TOW SERVICES
2 THIS AGREEMENT FOR TOW SERVICES entered into this�day of by
3 and between the City of San Bernardino ("City") and Loma Linda Towing ("Towing Carrier").
4 The parties hereto agree as follows:
5 1. Towing Carrier hereby agrees to provide tow services to the City of San
6 Bernardino pursuant to the terms and conditions contained in this Agreement.
7 2. Towing Carrier shall:
8 A. Have a minimum storage space for 200 vehicles with a minimum of twelve
9 inside spaces; outside storage lots must be adequately lighted.
10 B. Have an attendant on call twenty-four(24)hours a day, seven days a week
11 at place of business.
12 C. Have no more than two telephone numbers listed with any City department.
13 D. Store towed vehicles in a safe and protected space where the vehicles and
14 their contents will not be accessible to thieves nor be damaged by activity in the carrier
15 establishment or from the elements or by vandals; no vehicles shall be left parked or stored on the
16 public streets at anytime; in no event shall the city be liable for any theft, vandalism or damage
17 occurring to any such vehicle or is contents.
18 E. Post a tag on the windshield on all cars ordered impounded by a City
19 department.
20 F. Collect all towing or hauling and storage charges on each vehicle from the
21 owner; in no event shall the city be liable for any such charge.
22 G. Whenever a vehicle has been involved in an accident or a traffic violation,
23 and the owner or someone delegated by him is present and is capable of removing the vehicle from
24 the street with reasonable dispatch, and the vehicle is not needed for criminal evidence, City and/or
25 towing carrier shall permit the owner or his delegate to remove the vehicle or call a towing
26 company of his or her own choice to remove the same; provided, however,that if the street cannot
27 be cleared for safe public use with reasonable dispatch by the above method, and in all situations
28 other than above set forth, a towing carrier from the top of the rotation list will be called by the
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1 City.
2 H. Furnish each owner with a fully itemized billing.
3 I. Immediately after each towing operation, make a towing slip with the
4 contents of each vehicle placed in his or her care itemized thereon as verified by the officer
5 ordering the same and make the slip available to the City on request.
6 J. Release no impounded vehicle without first having obtained a release from
7 the City to do so.
8 K. Agree to a rotation system established by the City.
9 L. Comply with all rules, regulations and laws of the state, county and City.
10 M. Have adequate equipment to handle calls from the city, impounds and
11 storage of motor vehicles.
12 N. The carrier shall operate from a location within the City of San Bernardino,
13 and all of the facilities necessary for said operation shall be located within the City of San
14 Bernardino.
15 O. Carry a broom,trash can and sand and shall clean and remove broken glass,
16 spilled oil,or gasoline from the area before departing,unless directed to not do so by police officers
17 and/or designated City employees at the scene.
18 P. Obtain and maintain public liability and property damage insurance in the
19 amount of$1 million,and naming the City of San Bernardino as an additional insured. The carrier
20 shall provide a Certificate of Insurance,naming the City as an additional insured annually at a date
21 to be determined by the City's Risk Manager.
22 Q. Tow vehicles shall be rated at a minimum of 14000 GV W.
23 3. Towing Carrier shall give or cause to be given written notice to the registered and
24 legal owners of each vehicle which is towed in conformity with the authorization and requirements
25 of this Agreement concerning the fact of such towing,the place at which such vehicle is stored and
26 the imposition of charges for towing, storage and related services whenever the towing carrier
27 knows or is able to ascertain from the registration records in the vehicle or from the registration
28 records of the Department of Motor Vehicles the name and address of the registered and legal
DAB/js[Loma-Tow.Agrj 2
1 owners. The notice shall be given not more than ten (10) days from the date of the towing of the
2 vehicle by the towing carrier.
3 4. Every tow truck of towing carrier which is subject to the provisions of this
4 Agreement and which by virtue of this Agreement responds to calls for service by the City, shall
5 be clearly marked on both sides of the cab with the name and telephone number of towing carrier.
6 5. This Agreement may be terminated by either party for any reason upon the giving
7 of thirty (30) days written notice. Should City issue such termination notice, Towing Carrier will
8 be afforded a pretermination hearing before the Police Commission.
9 6. Towing Carrier shall be dispatched to tow calls on a per call rotation basis in
10 conjunction with other towing carriers which have entered into agreements with the City.
11 7. Monthly, Towing Carrier shall submit to the City a list of all vehicles towed the
12 previous month, including license plate number and VIN.
13 8. Towing Carrier shall charge for services on calls by the City, in an amount not to
14 exceed the hourly rate set forth by the California Highway Patrol. The minimum charge for
15 services shall not exceed one (1)hour.
16 9. Standby time for tow trucks will begin one (1)hour after receipt of calls from the
17 City and is defined to mean the time consumed after the first hour in necessary preparations in
18 order to tow the disabled vehicle and in cleaning up the immediate surrounding area.
19 10. In the event that a towed vehicle is forfeited by the owner in accordance with
20 §14607 of the California Vehicle Code, 100% of the net proceeds of the sale of the vehicle shall
21 be remitted to the City.
22 11. Upon reasonable advance written notice, City shall have the right to review and
23 audit the books of towing carrier at towing carrier's place of business and during business hours.
24 12. The parties understand and agree that this Agreement grants Towing Carrier a non-
25 exclusive franchise.
26 13. Towing Carrier shall charge and remit to City on a monthly basis a $50.00 per
27 vehicle towed franchise fee. Such fee shall not be charged for those individuals who have had their
28 vehicles towed, stored or impounded as a result of being a victim of a crime(car theft,etc)or those
DAs(Loma-Tow.Agr] 3
1 vehicles belonging to any public agency.
2 14. Towing Carrier shall also comply with the minimal standards set forth in the
3 California Highway Patrol tow service agreement as such agreement shall be amended from time
4 to time. Where provisions of this Agreement and the CHP tow service agreement shall be found
5 to be in conflict, the provisions of this Agreement shall prevail.
6 15. Towing carrier shall also comply with all provisions of the Resolution of the
7 Mayor and Common Council of the City of San Bernardino Establishing Standard Criteria for
8 Companies to Provide Tow Services for the City of San Bernardino as said resolution exists and/or
9 as said resolution may be amended from time to time.
10 16. This Agreement represents the entire Agreement between the City and the Towing
11 Carrier and fully supersedes any and all previous Agreements entered into by and between the City
12 of San Bernardino and Loma Linda Towing.
13 17. Any notice to be given pursuant to this Agreement by either party to the other shall
14 be deposited with the United States Postal Service,postage prepaid, and addressed as follows:
15 To the City: City Administrator
300 North "D" Street
16 San Bernardino, CA 92418
17 To Towing Carrier: Loma Linda Towing
1915 S. Tippecanoe Ave.
18 San Bernardino, CA
19 Nothing in this paragraph shall be construed to prevent the giving of notice by personal
20 service.
21 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
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1 and date first above shown.
2 CITY OF SAN BERNARDINO
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4 By:
Y DE�;N���OR PRO TEr1
5 Attest:
6 LOMA LINDA TOWING
"Towing Carrier"
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By:
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Approved as to Form
10 and Legal Content:
11 JAMES F. PENMAN,
City Attorney
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13 By:
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIM
This Settlement Agreement and Mutual Release of Claims ("Agreement") is made effe�tive
September 10, 1996, subject to the approval of the San Bernardino City Council, by and between
Leo Wenzel, individually and doing business as Loma Linda Towing ("Loma Linda Towing") and
the City of San Bernardino, a public entity ("City"), on the other hand, Loma Linda Towing and the
City are collectively referred to as the "Parties". This Agreement is based upon the following:
RECITALS
A. In April of 1995 Loma Linda Towing commenced providing tow services for the
City;
B. In July of 1995 Loma Linda Towing and the City entered into a written agreement
("Tow Agreement") for tow services to the City;
C. On or about March 19, 1996, the City notified Loma Linda Towing in writing that
the Tow Agreement referenced above was terminated effective thirty (30) days from the date of the
said written notice;
D. Loma Linda Towing appealed this termination to the City's Police Commission and,
subsequently to the City Council. Both the Police Commission and the City Council ruled against
Loma Linda Towing.
E. It is the desire of the Parties to settle all claims which exist between them arising out
of the subject Tow Agreement, termination of Loma Linda Towing by City and the hearings before
the Police Commission and City Council and the decisions of said Police Commission and City
Council.
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NOW, THEREFORE, in consideration of the mutual promises and conditions contained
herein, the Parties hereto agree as follows:
1. PLACEMENT ON TOW ROTATION LIST. Effective 12:01 A.M. on'September
10, 1996, subject to the approval of the San Bernardino City Council, Loma Linda Towing will be
placed on the City's established tow rotation list provided that Loma Linda Towing executes a new
tow agreement with the City prior to that time and date. If the San Bernardino City Council fails to
approve placing Loma Linda Towing on the tow rotation list,this release will have no force or effect.
2. MUTUAL RELEASE. Except for the obligations imposed by this Agreement,
Loma Linda Towing hereby releases the City, its predecessors-in-interest, successors-in-interest, `
affiliated entities,officers,Mayor,Council members,elected officials,employees,agents,authorized
representatives,attorneys,and assigns from any and all claims and demands arising out of or relating
to the Tow Agreement whether liquidated or contingent, certain or uncertain, known or unknown.
3. Except for the obligations imposed by this agreement,the City hereby releases Loma
Linda Towing, its predecessors-in-interest, successors-in-interest, affiliated entities, employees,
agents, authorized representatives, attorneys, and assigns from any and all claims and demands
arising out of or relating to the Tow Agreement entered into by City and Loma Linda Towing in
July, 1995, whether liquidated or contingent, certain or uncertain, known or unknown.
4. The Parties each acknowledge that it is familiar with the terms of California Civil
Code Section 1542, which reads:
"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 debtor."
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All Parties hereto,and each of them,hereby waive the provisions of Section 1542 and release
and relinquish any rights they may have under that section or any similar law and the application of
said Section or law to any future disputes. All Parties acknowledge that before executing this waiver
they were fully advised by legal counsel about the effects of waiving the provisions of, and their
rights under, Civil Code Section 1542.
5. FUTURE ASSURANCES. Each of the Parties shall, upon request of any other
party, execute and deliver such additional documents as may be necessary or convenient for the
purpose of evidencing or perfecting any rights or interests arising under this Agreement.
6. BINDING EFFECT. All of the covenants, agreements, conditions and terms
contained in this Agreement shall be binding upon, apply and inure to the benefit of the successors,
assigns, affiliates, shareholders, officers, directors, agents, employees, attorneys and representatives
of the respective Parties hereto.
7. INTEGRATION. This Agreement constitutes a final and complete statement of the
agreement between the Parties, and fully supersedes all prior agreements, representations or
negotiations, written or oral.
8. LEGAL PROCEEDINGS. In the event any legal proceeding is commenced for the
purpose of interpreting or enforcing any provision of this Agreement, the prevailing party in such
proceeding shall be entitled to recover a reasonable attorneys' fee, including all costs of using in-
house City Attorney in such proceeding, or any appeal thereof, in addition to the costs and
disbursements allowed by law.
9. AUTHORITY. Both the City and Loma Linda Towing warrant and represent that
the person executing this document on its behalf is fully authorized to do so.
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10. COUNTERPARTS. This Agreement may be signed in counterparts.
11. CALIFORNIA LAW. This Agreement is executed in the City of San Bernardino,
State of California, and shall be governed by California law.
12. NON-ASSIGNMENT. Each party hereto represents that it has not assigned,
transferred or purported to assign or transfer to any person, firm, partnership, or association, any of
the claims released hereunder. Each party hereto agrees to indemnify and hold harmless each other
party against any claim, demand, liability, costs, expenses, rights of action or causes of action based
on, arising out of, or in connection with any such transfer or assignment or purported transfer or
assignment.
13. NON-ADMISSION OF A LIABILITY. Each party hereto further understands,
acknowledges and agrees that its execution of this Agreement consummates a compromise of
disputed claims and is not and shall not be construed as an admission of liability on the part of either
party hereto.
14. NO MODIFICATION. This Agreement may not be modified except by an
agreement in writing duly executed by the Parties hereto.
15. REPRESENTATION, The Parties hereto represent and acknowledge that they have
had the opportunity to confer with counsel of their own selection with respect to the subject matter
hereof. This Agreement is entered into voluntarily by the Parties hereto.
16. NUMBER AND GENDER. Headings are used herein for convenience only and
shall have no force or effect in the interpretation or construction of this Agreement. As used in this
Agreement, the singular shall include the plural, and the masculine shall include the feminine and
neutral gender.
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17. COSTS. Each party hereto shall bear its own costs and fees relating to this
Agreement and the subject matter hereof.
DATED: September�, 1996 CITY OF SAN BERNARDINO
By: c �
Y DET11, MAYOR PRO TEM
DATED: Septembei , 1996 LEO WENZEL
dba LOMA L A TOWING
By:
APPROVED AS TO FORM:
DATED: September_, 1996 CITY O SAN BERNARDINO
By: �= O
6City Attorney
DATED: September 1—, 1996 RING & G
By: 7 (PO
Robert A. Rin , Attorneys for Leo Wenzel
dba Loma Linda Towing
DATED: September_, 1996 BRUNICK, ALVAREZ &BATTERSBY
By:
Amy Greyson, Attorneys for Leo Wenzel
dba Loma Linda Towing
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