18-023 PerfectMind, Termination Agreement TERMINATION AGREEMENT
This,T�rmination Agreement ("Termination Agreement") is made and entered into as of
December �, 2017 ("EfTective Date") by and between the City of Cupertino ("City") and
PerfectMlND Inc. ("Perfec(MlND"),hereinafter individually a"Party" and collectively"the Parties",
on the terms set forth below("Termination Agreement").
RECITALS
WHEREAS, City and PerfectMlND entered into a written Software As A Service &
Professional Services Agreement (hereinafter the "Agreement") dated January 25, 2016, under the
terms of which PerfectMlND agreed to provide certain technology and consulting services to City;and
WHEREAS, the Parties now,desire to mutually terminate the Agreement and compromise,
settle, release,and forever discharge all claims,controversies,demands, actions,or causes of action,
known or unknown, between them arising out of the Agreement or the relationship of the Parties in
connection with the Agreement.
NOW,THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION,the adequacy of
which is hereby acknowledged and agreed,the Parties agree as follows:
AGREEMENT
1. Termination of Agreement.The Agreement is hereby mutually terminated pursuant to Section
7.1 et seq of the Agreement.
2. Settlement Payment,There shall be no settlement payment by or to any of the Parties to this
Termination Agreement.
3. Mutual Release of All Claims. Except as otherwise expressly provided in this Termination
Agreement, each Party hereby mutually compromises,releases, and discharges, each other Party and
each of the other Party's respective attorneys, agents, beneficiaries, representatives, employees,
partners, spouses, domestic partners, heirs, predecessors in interest, successors in interest, assigns,
insurers,stockholders,affiliated companies,subsidiaries and parent companies,directors,and officers,
from any and all past,present,or future claims for compensatory or punitive damages, costs, losses,
expenses, attorney's fees, rights, duties, causes of action, liens, subrogation rights, indemnification
rights,insurance claims,and compensation of any nature whatsoever,whether based on tort,contract,
statutory,or any other legal or equitable theory of recovery,whether known or unknown,suspected or
unsuspected, fixed or contingent, matured or unrrmatured,which in any way arise out of, relate to,the
facts,allegations,events or claims alleged or arising out of the Agreement,all of which are referred to
here as "Claims". The Parties agree that this compromise and settlement shall constitute a bar to all
such Claims.
4. Release sof All Claims and Waiver of Civil Cade Section 1542: Each Party understands that the
Releases in this Termination Agreement extend to all claims of any nature and kind, known or
unknown,suspected or unsuspected,anticipated or unanticipated,arising out of or in connection with
the Agreement. Each Percy is also aware of, has read,considered and understands the provisions and
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significance of Section 1542 of the California Civil Code,which reads as follows:
§1542. 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.
Each Party expressly waives its rights under Section 1542. Each Party understands and acknowledges
that a risk exists that it incurred or suffered, or may incur or suffer, loss, damages as a result of the
matters, facts, events, occurrences, transactions, causes, and things referred to in this Termination
Agreement which were unknown, unsuspected, or unanticipated at the time this Termination
Agreement was executed.The Parties each assume this risk,and agree that the foregoing release shall
in all respects be effective and not subject to termination or rescission.
BASED UPON THE ADVICE OF ITS RESPECTIVE COUNSEL,EACH PARTY VOLUNTARILY,
AND WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE, WAIVES AND RELINQUISl1ES
ANY AND ALL RIGHTS THAT IT MAY HAVE UNDER CIVIL CODE § 1542 AS WELL AS
UNDER THE PROVISIONS OF ALL COMPARABLE,EQUIVALENT OR SIMILAR STATUTES
AND PRINCIPLES OF COMMON LAW OR OTHER DECISIONAL LAW OF ANY AND ALL
STATES OF THE UNITED STATES.
5. No Admissions.The Parties recognize that this Termination Agreement includes the settlement
of disputed Claims and neither of the Parties admits or acknowledges any liability or wrongdoing.The
Parties agree that the terms of this Termination Agement are not admissible in any court,
administrative action, or legal proceeding for the purpose of proving any liability or wrongdoing
arising out of the Claims released herein. This shall not limit admissibility of the terms of this
Termination Agreement as reasonably necessary to enforce or interpret its terms.
6. The Parties agree that they will not issue a press release concerning this Termination
Agreement.The Parties will not volunteer information about the Agreement and agree to respond to
questions regarding the Agreement between the Parties by only providing fact based answers.
7. Attorney Fees,Costs and Expenses: As against each other, the Parties hereto shall bear their
own attorneys' fees, costs and expenses arising in connection with the Agreement, the negotiations
relating to the termination of the Agreement,Claims,this Termination Agreement,the matters referred
to herein, and all related matters. In the event a Party seeks to interpret or enforce the terms of this
Termination Agreement through court action, the prevailing Party shall be entitled to its reasonable
attorney's fees,costs and expenses in connection with said proceeding. Such court shall determine the
prevailing Party for the purposes of this paragraph.
S. General Terms.
a. W.n rrs rifles and Execution of Agreement. Each Darty executing the Termination
Agreement represents and warrants that no other person or entity had or has any interest in any of the
claims,demands,obligations, property,or causes of action referred to in this Termination Agreement,
that each Party has the sole right and exclusive awho6ty to execute this Termination Agreement and
to receive the settlement consideration specified herein;thatexecution,delivery, and performance of
this Tcrrni:nation Agreement and any related documents has been duly au norizvd by all necessary
partnership,trust or corporate action; that each individual execurifing. this Termin,a-lion Agreeirmen'1 and
F'a;g;e
any related documents is authorized to so execute instruments of this nature on the Party's behalf; and
that each Party has not sold, assigned, transferred, conveyed, hypothecated or otherwise disposed of
any of the claims,demands,obligations,or causes of action referred to in this Termination Agreement.
b.Entire Agreement.This Termination Agreement contains the entire agreement between
the Parties concerning the termination of the Agreement and the relationship of the Parties and Claims
settled herein. This Termination Agreement may not be amended, altered, modified or otherwise
changed except by a writing executed by the Parties hereto which expressly states that it is an
amendment to this Termination Agreement.All prior oral or written agreements, if any, are expressly
superseded hereby and are of no further force and effect.
c. Effect on Successors.This Termination Agreement shall be binding upon,and inure to
the benefit of, any successors, assigns, executors, beneficiaries, administrators, personal
representatives,and heirs of the Parties.
d.Time of the Essence.Time is of the essence with regard to all matters contained in this
Termination Agreement.
c.No Waiver.No delay or omission by any Party hereto in exercising any right under this
Termination Agreement shall operate as a waiver of such right.
f.Governing Lain and Venue.This Termination Agreement is entered into in Santa Clara
County,the Superior Court of the State of California,County of Santa Clara is the exclusive venue for
any action arising out of this Termination Agreement.The Termination Agreement shall be construed
and interpreted in accordance with the laws of the State of California without regards to conflicts of
laws principles.
g.Voluntary Release. In entering into this Termination Agreement, the Parties represent
that they have relied on the legal advice of their respective attorneys, who are attorneys of their own
choice,and that the terms of this Termination Agreement have been completely read and explained to
them by their attorney,and that those terms are fully understood and voluntarily accepted.The,releases
contained in this Agreement are freely and voluntarily executed by the Parties whose signatures are
affixed hereto.Each Party, in executing this Agreement,has not relied on any inducements,promises;
or representation made by any Party hereto or their employees or agents except as expressly set forth
in this Agreement.
h. Severability of Provisions. if any provision of this Agreement is adjudged to be void
or invalid, for any reason,but would be valid if the wording thereof was deleted or changed,then such
provision shall be deemed modified as necessary to make it valid and effective. In such modification
is not possible,then the invalid provision shall not affect the enforceability of the remaining provisions
contained herein,all of which shall continue in full force and effect.
i.Good faith Settlement Stip-On1lon. fte Parties to this Agreement stipulate the settlement
that is the subject of this Agreement is in good faith pursuant to California Code of Civil Procedure
sections 877 and 877.6.
j. Mndigng Agreement.This Agreement and each anti every provision hereof, shall bind and
shall :cc to The benefit of the Parties hereto, and their respecti,.e anti or prospective heirs, execu,ors.
Pave 3 of
administrators,trustors,trustees,beneficiaries,predecessors,successors,officers,directors,principals,
agents, or assigns. This Agreement is not binding until approved by Cupertino City Council and fully
executed by all the Parties.
k. Counterparts. This Agreement may be executed simultaneously or in any number of
counterparts, each of which shall be deemed an original, equally admissible in evidence, but all of
which together shall constitute one and the same Agreement, notwithstanding that the signatures of
each Party do not appear on the same page of the Agreement and shall be deemed one original.
I.Construction of Agreement.This Agreement,and each provision hereof,has been reached
as the result of negotiations between the Parties and their respective attorneys. Each of the Parties
hereto expressly acknowledges and agrees this Agreement shall not be deemed to have been prepared
by, or drafted by, any particular Party, and the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of
the Agreement.
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IT IS ITER-ULiY AGR1JEM
PerfectAILP1D Inc.
gated: Decennber_ � 2017 By:
,fir ,
Printed Name: �r,A nc� �r—
Title:
City of Cupertino
Dated: December__ 2017� By: ,� ..�._...�..__
David Brandt
City Manager
A-PPROVED AS TO I't7I2M:
Dated: December 2017 By:
Randolph Stevenson l lom,
City Attorney
Attorneys for Perfec*AIND,Inc.:
rl
Dated:December T 2017 By:
Ardcs sir ara L'•sq.
Saber,LLP
Paha 5 n3 5
INNOVATION & TECHNOLOGY DEPARTMENT
BILL MITCHELL, CTO
12 CITY HALL
10300 TORRE AVENUE •CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-1333
C U P E RT I N O Billm@cupertino.org
December 5, 2017
Farid Dordar
CEO &Founder
PerfectMind
Dear Farid,
As we discussed should the City receive any inquiries about PerfectMind, staff has been
instructed to direct those questions to me as the single point of contact. My response to
any questions concerning PerfectMind will be that the City of Cupertino has decided to
go a different direction with this project and is utilizing another software provider.
Thank you for your efforts on behalf of the City of Cupertino.
Sincerely,
Bill Mitchell
Chief Technology Officer
City of Cupertino