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Ordinance No. 15,771 ORDINANCE NO. 15,771 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A SETTLEMENT AGREEMENT WITH CMC DEVELOPMENT AND CONSTRUCTION CORPORATION,LLC RELATED TO THE MATTER STYLED CMC DEVELOPMENT AND CONSTRUCTION CORPORATION, LLC V. CITY OF BAYTOWN; NO, 202248156 IN THE 269TH DISTRICT COURT, HARRIS COUNTY, TEXAS; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN THE AMOUNT OF SIXTY-TWO THOUSAND, FIVE HUNDRED DOLLARS($62,500.00); AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ***************************************************************************** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS: Section 1: That the City Council of the City of Baytown,Texas, hereby authorizes a settlement agreement with CMC Development and Construction Corporation,LLC related to the matter styled CMC Development and Construction Corporation, LLC v. City of Baytown;No,202248156 in the 269th District Court, Harris County, Texas. A copy of the Mutual Release Agreement setting forth the terms of the settlement is attached hereto,marked Exhibit "A," and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to CMC Development and Construction Corporation, LLC in the amount of SIXTY-TWO THOUSAND, FIVE HUNDRED DOLLARS ($62,500.00) in accordance with the agreement authorized in Section 1 hereinabove. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the.10ity Council of the City of Baytown this the 11"day of April, 2024. BRANDON APETIL O, Mayor A EST: r 1 TO '0 ANIGELQk JACKSON,lgsty Clerk Y' APPROVED A T FORM: SCOTT L .M ND, City Attorney R:`,Scott•.Ordinances 24-04-11 Stl Agt CMC.docx Draft 3/1/24 EXHIBIT "A" CAUSE NO. 2022-48156 CMC DEVELOPMENT AND § IN THE DISTRICT COURT OF CONSTRUCTION § CORPORATION, LLC, § Plaintiff, § § HARRIS COUNTY, TEXAS V. § CITY OF BAYTOWN, § Defendant. § 269TH JUDICIAL DISTRICT SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is made and entered into on March_, 2024 (the "Effective Date")by and between CMC Development and Construction Corporation, LLC ("CMC"), Frankenmuth Mutual Insurance Company ("FMIC") and the City of Baytown, Texas ("The City'). The foregoing entities may individually be referred to herein as "Party" and collectively herein as "Parties." This Agreement is entered into for good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, and in consideration thereof, the Parties agree to all the terms and conditions stated in the following Agreement, including the recitals which are of material consideration hereto. RECITALS 1. Subject Matter. This case arises from a road reconstruction project in the City of Baytown (the "Project'). Pursuant to Chapter 2253 of the Texas Government Code, FMIC issued payment and performance bonds on behalf of CMC for the Project. In August 2021, The City contracted with CMC for the Project. After the Contract was signed, a dispute arose over CMC's performance of the Contract and the City terminated the Contract for its convenience. The Parties disputed the amount that is due to CMC under the Contract and CMC filed Cause No. 2022-48156, CMC Development and Construction Corporation, LLC v. The City of Baytown;In the 269th Judicial District Court of Harris County, Texas (the "Lawsuit"). The events, issues, disputes, and matters described in this Paragraph are collectively referred to herein as the "Subject Matter." 2. Consideration. The Parties agree as follows: The City shall pay CMC the total sum of $62,500.00 (the "Settlement Amount") within 30 days after the date the Effective Date and CMC shall accept the settlement amount as payment in full of any money owed to CMC by the City under the Contract. The Settlement Amount shall be paid by ACH Wire to Stephens Reed and Armstrong, PLLC's IOLTA Account; Account Number 785199909; Routing Number 021000021; JP Morgan Chase.. The wire shall be sent on or before the date due as specified in this Agreement. FMIC consents to the City's payment of the Settlement Amount to CMC and waives any claims it might have to any portion of those funds. Upon execution of this Agreement, no Party shall initiate any further action in the Lawsuit other than filing a notice of non-suit. Should the Court require the Parties to file any pleading or other motion with the Court to retain the Lawsuit pending the City's payment of the Settlement Amount, the Parties shall work together to comply with the Court's requirements. CMC shall file a notice of non-suit, with prejudice, of the Lawsuit within 5 days after the Settlement Amount clears CMC's financial institution. 3. Release. Pursuant to the terms and conditions of this Agreement, the Parties have agreed to fully release and discharge each other from any and all "Claims," or potential Claims arising out of the Subject Matter. As used herein, the term "Claims" means any and all causes of action, demands, debts, obligations, duties, liabilities, and theories of liability of any kind or nature, whether based in contract or tort, whether arising in equity or under the common law, whether by statute or regulation, whether known or unknown, whether past, present, or future, whether contingent, prospective, or matured, whether for damages relief, injunctive relief, declaratory relief, equitable relief, or any other type of relief, whether for actual damages, liquidated damages, punitive damages, exemplary damages, compensatory damages, consequential damages, incidental damages, pecuniary damages, costs, expenses, attorneys'fees, interest, penalties or fines that are (is), were (was), or could have been asserted by any Party to this Agreement against any other Party to this Agreement, regardless of whether actually asserted, whether by claim, counterclaim, crossclaim, motion, third-party claim, or otherwise, that arise out of the Subject Matter. Notwithstanding the foregoing, the term "Claims" does not include any claim related to the enforcement or performance of this Agreement, the breach of this Agreement, or that does not arise out of the Subject Matter. 4. No Admission of Liability. The Parties have entered into this Agreement because the Claims arising out of the Subject Matter are controverted and subject to a bona fide dispute concerning the allegations, liabilities, and damages between the Parties. It is specifically agreed to by the Parties that this Agreement is being made to put to rest these disputes and so the Parties may buy their peace and avoid the time, expense, and uncertainties of litigation, and this Agreement is in no way to be construed as an admission of liability on the part of any of the Parties, all such liability being expressly denied. 5. RELEASE BY CMC DEVELOPMENT AND CONSTRUCTION CORPORATION, LLC. CMC DEVELOPMENT AND CONSTRUCTION 2 CORPORATION, LLC ON BEHALF OF ITSELF AND ANY AND ALL OF ITS PRESENT, FORMER, AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, MEMBERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES, ASSIGNS, AND SUCCESSORS HEREBY RELEASES, ACQUITS, AND FOREVER DISCHARGES THE CITY OF BAYTOWN AND ANY AND ALL OF ITS PRESENT, FORMER, AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES,ASSIGNS,AND SUCCESSORS FROM ANY AND ALL CLAIMS OR POTENTIAL CLAIMS ARISING OUT OF THE SUBJECT MATTER. 6. RELEASE BY FRANKENMUTH MUTUAL INSURANCE COMPANY. FRANKENMUTH MUTUAL INSURANCE COMPANY, ON BEHALF OF ITSELF AND ANY AND ALL OF ITS PRESENT, FORMER,AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, MEMBERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES, ASSIGNS, AND SUCCESSORS HEREBY RELEASES, ACQUITS, AND FOREVER DISCHARGES (1) CMC DEVELOPMENT AND CONSTRUCTION CORPORATION, LLC, AND ANY AND ALL OF ITS PRESENT, FORMER, AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES, ASSIGNS, AND SUCCESSORS FROM ANY AND ALL CLAIMS OR POTENTIAL CLAIMS ARISING OUT OF THE SUBJECT MATTER; AND (2) THE CITY OF BAYTOWN AND ANY AND ALL OF ITS PRESENT, FORMER, AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES, ASSIGNS, AND SUCCESSORS FROM ANY AND ALL CLAIMS OR POTENTIAL CLAIMS ARISING OUT OF THE SUBJECT MATTER. 7. RELEASE BY THE CITY OF BAYTOWN. THE CITY OF BAYTOWN, ON BEHALF OF ITSELF AND ANY AND ALL OF ITS PRESENT, 3 FORMER, AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, MEMBERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES, ASSIGNS, AND SUCCESSORS HEREBY RELEASES, ACQUITS, AND FOREVER DISCHARGES (1) CMC DEVELOPMENT AND CONSTRUCTION CORPORATION, LLC AND ANY AND ALL OF ITS PRESENT, FORMER, AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES, ASSIGNS, AND SUCCESSORS FROM ANY AND ALL CLAIMS OR POTENTIAL CLAIMS ARISING OUT OF THE SUBJECT MATTER; (2) FRANKENMUTH MUTUAL INSURANCE COMPANY AND ANY AND ALL OF ITS PRESENT, FORMER, AND FUTURE AGENTS, REPRESENTATIVES, ASSOCIATES, JOINT VENTURERS, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, OWNERS, ATTORNEYS, LEGAL REPRESENTATIVES, INSURERS, SUBROGEES, AFFILIATED ENTITIES, SUBSIDIARIES, PARENT ENTITIES, PREDECESSOR ENTITIES, RELATED ENTITIES, ASSIGNS, AND SUCCESSORS FROM ANY AND ALL CLAIMS OR POTENTIAL CLAIMS ARISING OUT OF THE SUBJECT MATTER. ADDITIONAL PROVISIONS 8. Entirety. This Agreement constitutes the entire agreement of the Parties respecting the compromise and settlement contained herein and supersedes any prior understandings or written or oral agreements between the Parties respecting the compromise and settlement contained herein. No variations, amendments, modifications or changes herein or hereof will be binding upon a Party unless set forth in a document duly and fully executed by the Party. 9. Successors and Assigns. This Agreement will be binding on and inure to the benefit of the Parties' successors, assigns, agents, and representatives. 10. Captions. The titles and headings of the articles, sections, and paragraphs of this Agreement have been included only for convenience and reference and will not be construed to extend, limit, describe or define the substance of any article, section or paragraph contained herein. 11. No Promise or Representation. The Parties each warrant and represent and do hereby state and represent that they have made no promise or agreement by the other (which is not expressed specifically within the Agreement) in executing this Agreement. The Parties each separately and expressly warrant that they are not relying upon any statement or representation of any agent of the Parties being 4 released hereby. No Party has relied upon any agreement or representation not set forth or referenced herein whether the same may be oral or in writing. 12. Applicable Law and Venue. The Parties expressly agree that this Agreement is executed and delivered and is intended to be performed in Harris County, Texas, and that the laws of the State of Texas will govern the validity, construction, enforcement, and interpretation of, and any disputes or actions relating to or arising from, this Agreement, without regard to choice or conflict of law principles. Any claims or actions relating to or arising from this Agreement will be brought exclusively in any court of competent jurisdiction in Harris County, Texas, and the Parties consent to jurisdiction in any such court and waive any objections to jurisdiction or venue in any such court, including but not limited to claims based on lack of personal jurisdiction, forum non conveniens, or improper or inappropriate venue. 13. Waiver. No waiver will be deemed to be made by any Party of any of their rights hereunder unless the same will be in writing and signed by the Party to be charged therewith, and each waiver, if any, will be a waiver only with respect to the specific instance involved and will in no way impair the rights of the waiving Party or the obligations of the other Party in any other respect at any other time. 14. Assignment. Each of the Parties represents that it has not conveyed, sold, assigned, or otherwise transferred to any third party any portion of its Claims being released, discharged, or dismissed by virtue of this Agreement. Each of the Parties represents that it is the lawful owner of all Claims asserted by it in the Subject Matter and that it has not assigned, pledged, or in any manner sold or transferred any right, title or interest in such Claims. Neither this Agreement, nor any interest herein, will be assigned by any Party without the prior written consent of the others. 15. Authority. Each of the Parties warrants and represents that it has full power and authority to enter into this Agreement and to bind the Parties, that all necessary consents and approvals have been obtained, and that no other consent, approval or action is required. 16. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument representing the Agreement. 17. Informed Parties. Each of the Parties to this Agreement separately represents and warrants that before signing this Agreement, it has fully informed itself of the terms, contents, conditions and effects of the Agreement and in making this Agreement it has had the opportunity to consult with legal counsel of its own choosing. The Parties were represented by experienced and competent counsel who are knowledgeable about matters of this kind. The Parties thoroughly and diligently performed their own investigations into the law and facts with respect to this Matter 5 with the assistance of their counsel. The Parties relied solely upon their own investigation and the advice of their own counsel in deciding to enter into this Agreement. Each of the Parties to this Agreement further warrants that the Agreement was executed by it voluntarily and that all statements, representations, and agreements contained in this Agreement are contractual in nature, not mere recitations of fact. 18. Cooperation. The Parties agree to cooperate in executing any supplemental or additional documents as may be necessary and appropriate to the conclusion of this matter consistent with the tenor of this Agreement. 19. Severability. Each part of this Agreement is intended to be separate, and if any term, covenant, condition, or provision hereof is illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability will not affect the legality, validity, and enforceability of the remaining parts of the Agreement. 20. Negotiated Agreement. The Parties fully and fairly negotiated the terms and conditions of this Agreement in an arm's length transaction. The Agreement shall not be construed against any other Party as the author or drafter of the Agreement. The Agreement is just, fair, reasonable, and in all Parties' best interest. 21. Complete and Unambiguous Agreement. The Parties have carefully read this Agreement. The language used in the Agreement is clear and unambiguous. The Parties fully understand and appreciate the terms, conditions, and consequences of this Agreement. This Agreement represents the sole agreement between the Parties with respect to the subject matter of this Agreement. This Agreement supersedes and displaces all prior or contemporaneous promises, representations, statements, terms, conditions, understandings, agreements, and warranties whether oral or written with respect to the subject matter of this Agreement. Evidence extrinsic to this Agreement shall not be offered or used to vary or contradict any terms contained herein. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES. THE PARTIES HEREBY SPECIFICALLY DISCLAIM RELIANCE ON ANY STATEMENTS, REPRESENTATIONS, OR PROMISES MADE BY ANY OF THE PARTIES PRIOR TO THE EXECUTION OF THIS SETTLEMENT AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN. 22. Amendment or Modification. This Agreement shall only be amended or modified in writing and signed by the Parties. 6 23. Mutual Non-Disparagement. As of the Effective Date of this Agreement and thereafter, the Parties shall not make any disparaging or derogatory statements, whether written, oral, or otherwise, regarding any other Party or the subject matter related to this Lawsuit. Nothing in this Agreement shall be deemed to prevent the Parties from truthfully testifying in accordance with the law when compelled to do so. The Parties agree they will not at any time disparage, defame, or denigrate the reputation, character, image, products or services of any other party. 24. Confidentiality. The Parties shall maintain the terms of this Agreement as confidential, to the extent permitted by law, and shall not disclose the terms of this Agreement to third parties, except as required by law. This section shall not prohibit the Parties from disclosing the terms of this Agreement to certain professionals such as accountants/CPAs, attorneys, title companies, banking institutions, landlords, investors, potential investors, potential purchasers, or other third parties who need certain data to provide services to the Parties ("Service Providers"). In instances where disclosure of certain information is required to Service Providers, the Parties shall only disclose the specific information necessary for the Service Providers as is reasonably necessary in light of the specific cause for disclosure. The Parties agree that the consideration for confidentiality shall be the mutual exchange of promises between the Parties to keep the terms of the settlement confidential. This provision excludes requests for information and information required pursuant to submissions of bids. 25. Binding Effect. The Parties agree that duplicate originals, copies, or facsimile copies may be executed in lieu of the original. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. 7 THE CITY OF BAYTOWN, CMC DEVELOPMENT AND TEXAS CONSTRUCTION CORPORATION, LLC By: By: Print name: Print name: Title: Title: FRANKENMUTH MUTUAL INSURANCE COMPANY By: Print name: Title: 8