SETTLEMENT AGREEMENT

Transcription

1 Lml SETTLEMENT AGREEMENT THE STATE OF TEXAS COUNTY OF HARRIS 1 entered into by and between Kenneth R. Hammers, d/ b /a Goose Creek Towing, Always Towing, This Settlement Agreement ( the " Agreement "), made effective as of April 2014, is Baytown Auto Storage, Baytown Collision, Kenneth' s Paint and Body, N. Main Towing, and Ranger Towing ( collectively " Tow Truck Company ") and the City of Baytown, Texas ( the City "). WHEREAS, the Baytown Tow Truck Committee ( the " Committee ") found that Goose Creek Towing violated certain provisions of ( i) Chapter 102, Article III of the Code of Ordinances and ( ii) its Tow Agreement with the City of Baytown; and WHEREAS, based upon such findings, the Committee ordered the revocation of Goose Creek Towing's Tow Truck Permit, which revocation has the effect of revoking the Tow Truck Permits of the Tow Truck Company; and WHEREAS, the Tow Truck Company denies all allegations made and contests the Committee' s order; and WHEREAS, in order to avoid the expense, burden and delay of potential litigation, and without admitting or acknowledging any liability, the City and the Tow Truck Company collectively the " Parties ") now wish to effect a complete resolution and settlement of all claims arising out of or in connection with Goose Creek Towing' s nonconsent tow performed on December 27, 2013, ( the " Nonconsent Tow ") and freely and voluntarily enter into this Agreement for that purpose; NOW, THEREFORE, in consideration of the covenants contained in this Agreement, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Complete Resolution. It is the intent of this Agreement to resolve, fully and forever, the claims arising out of or in connection with the Nonconsent Tow between the Parties to this Agreement pursuant to the terms contained herein. 2. Tow Truck Company' s Obligations. a. Suspension. The Tow Truck Company agrees to a suspension totaling one hundred seventy-three ( 173) days to be applied in staggering consecutive increments as follows: i) A thirty ( 30) day suspension to apply to all tow truck companies owned by Mr. Hammers, to begin on April 11, 2014, and end at 11: 59: 59 p.m. on May 10, 2014; then Settlement Agreement, Page 1

2 W ii) iii) A seventy -one ( 71) day suspension, beginning at 12: 00:01 a.m. on May 11, 2014, and ending at 11: 59: 59 p.m. on July 20, 2014, for Goose Creek Towing and Always Towing; then A seventy -two ( 72) day suspension, beginning at 12:00:01 a.m. on July 21, 2014, and ending at 11: 59: 59 p.m. on September 30, 2014, for Baytown Auto Storage, N. Main Towing, and Baytown Collision. b. Civil Penalty. The Tow Truck Company agrees to pay a FIVE HUNDRED AND NO1100 DOLLAR ($ ) civil penalty to the City within ten ( 10) days of the execution of this Agreement. C. Reimbursement to Vehicle Owner. The Tow Truck Company agrees to reimburse TWO THOUSAND SEVEN HUNDRED ELEVEN AND 38/ 100 DOLLARS ($ 2, ) to Mr. Jerry Yarbrough, owner of the 2013 Toyota Tacoma ( VIN 5TFJU4GW3DX040667) that was subject to the Nonconsent Tow. 3. City' s Obligations. a. Suspension. The City will suspend the tow truck companies in accordance with Section 2. a hereinabove. b. No Revocation. The City agrees that this Settlement Agreement will not be construed as a revocation of any tow truck permit of the Tow Truck Company but rather shall be treated as a suspension. 4. Mutual Release of All Claims. With the exception of actions to enforce the terms of this Agreement, each Party hereby releases and forever discharges and covenants not to sue the other Party from any and all claims, demands, actions, causes of action, in law or equity, suits, liability losses, agreements, contracts, covenants, debts, costs, attorneys' fees, or expenses, known or unknown, suspected or unsuspected, foreseen or unforeseen, anticipated or unanticipated, that such Party now has or may ever have had against the other Party concerning the Nonconsent Tow. 5. Advice of Counsel. In executing this Agreement, the Parties acknowledge that they have consulted with and have been advised by their attorneys, and that they have executed this Agreement after independent investigation, and without fraud, duress, or undue influence. 6. Future Waivers. No waiver by either Party of any breach by either of them of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar condition or provision at the same or any prior or subsequent time. 7. Modification. This Agreement may be modified only in writing signed by authorized representatives ofthe Parties. Settlement Ageement. Page 2

3 8. Authorily. The signatories below each represent and warrant that they have the full power, authority, and capacity to make commitments contained in this Agreement. 9. No Admission of Liability. Each Party to this Agreement agrees that the claims released by this Agreement are disputed by the Party against whom such claims are made, and that this Agreement is made only to avoid the cost of litigation, and that this Agreement shall not be construed as an admission of liability by any Party; provided however, the Committee and the City Council may use this Agreement when considering appropriate actions for any violations by the Tow Truck Company brought before the Committee after the effective date hereof. 10. No Representations. Each Party acknowledges that it is fully aware of the significance and legal effect of this Agreement, including the Agreement' s release provisions, and that promise, or it is not entering into this Agreement in reliance on any representation, statement made by any Party except those explicitly contained in this Agreement. 11. Mistake. Each Party to this Agreement has investigated the facts pertaining to it to the extent each Party deems necessary. In entering into this Agreement, each Party assumes the risk of mistake with respect to such facts. This Agreement is intended to be final and binding upon the Parties regardless of any claim of mistake. 12. Severability. The provisions of this Agreement are contractual, and not merely recitals, and shall be considered severable, so that if any provision or part of this Agreement shall at any time be held invalid, that provision or a part thereof shall remain in force and effect to the extent allowed by law, and all other provisions of this Agreement shall remain in full force and effect, and enforceable. 13. Construction. This Agreement has been reviewed by the Parties and their respective attorneys, and each Party has had full opportunity to negotiate the contents of this Agreement. The Parties waive any common law or statutory rule of construction that ambiguity should be construed against the drafter of this Agreement and agree that the language in all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning. 14. Counterparts. This Agreement may be executed in separate counterparts, and if so executed and delivered, all of the counterparts together shall constitute one and the same Agreement. 15. Headings. All headings or titles used in this Agreement are used for convenience only and shall not be used to limit, expand, or modify in any way the actual language in each paragraph. Remainder of page intentionally left blank] Settlement Agreement, Page 3

4 in WITNESS WHEREOF, the Parties have meonted -this Agmement on the IL ilay of AA a: n fat n.,. vsimon M OF APPROM AS TO FORM: IENACIO RAMXE74 SR., Ci A tomey TOW TRUCK COMPANY, S 4WA' Goose owing, Always Towing,. Baytown. Auto Storage, Baytown. Collision, Kenneth' s Paint and Body, 19. Main Towing; and Ranger Towing STATE OF TEXAS COUNTY OF HARRIS The foregoing instmment was acknowledged before me on this _L& ay" of April, 2014, by Kenneth R. Hammms, d/ b/a, Goase Creels Towing; Always Towing, Baytown Auto Storage; Baytown (Collision, Kenneth' s Paint and Body, N. Main Towing, and Ranger: Towing, on behalf. ofsaid entities- MALI _ YP a RASk 5. CUELtAR NotatyPUbllc State of T6Xds oc AMY Comm ExDiras NoWy Public in and for the State of Texas LAKm ToWTAd*SOkmart9a TcWTmcxsmumrnUFMmmtCkmd-

5 IN WITNESS WHEREOF, the Parties have executed this Agreement on the R day of April, CITY OF BAYTOWN: ATTEST: ROBERT D. LEIPER, City Manager LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney TOW TRUCK COMPANY: NN "' RS, d/ b /a Goose a owing, Always Towing, Baytown Auto Storage, Baytown Collision, Kenneth' s Paint and Body, N. Main Towing, and Ranger Towing STATE OF TEXAS The foregoing instrument was acknowledged before me on thisj"day of April, 2014, by Kenneth R. Hammers, d/ b /a, Goose Creek Towing, Always Towing, Baytown Auto Storage, Baytown Collision, Kenneth' s Paint and Body, N. Main Towing, and Ranger Towing, on behalf of said entities. SEAL ] o Fr pa ROSA S. CUELLAR % y Notary PuhIIC State of Texas i r9 0 My Comm. Expires No y Public in and for the State of Texas 1LWs %F0MT,M rsus \Taw Truck SCW= CM Agre mffm Truck Satdm= Apemmrt Ckan.dm Settlement Agreement Page 4