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Ordinance No. 7,910970227 -8 E� ORDINANCE N0. 7910 ® AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A RELEASE AND CONTRACT OF SETTLEMENT WITH SMITH, MURDAUGH, LITTLE & BONHAM, L.L.P.; 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 and directs the City Manager and City Clerk of the City of Baytown to execute and attest to a Release and Contract of Settlement with Smith, Murdaugh, Little & Bonham, L.L.P. A copy of said Agreement .is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: 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 City Council of the City of Baytown this the 27th day of February, 1997. PETE C. ALFARO, Mayor ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: czaoe'-D 44�- - ACIO RAMIREZ, S ), City Attorney 0 c: klh291 Councih0rdinances \SmithMurdaughSettlement.Ord • • SMITH, MURDAUGH, LITTLE & BONHAM, L.L.P., Plaintiff VS. THE CITY OF BAYTOWN, TEXAS, Defendant CAUSE NO. 671908 § § § IN THE COUNTY CIVIL COURT AT LAW NO. 1 HARRIS COUNTY, TEXAS RELEASE AND CONTRACT OF SETTLEMENT WHEREAS, the Parties to this Release and Contract of Settlement ( "Agreement ") are Smith, Murdaugh, Little & Bonham, L.L.P., hereinafter referred to as "Plaintiff," and the City of Baytown, its officers, agents, and employees, and hereinafter referred to as "Defendant," collectively referred to as the "Parties;" and WHEREAS, Plaintiff has filed the above - entitled and numbered cause against the Defendant claiming Plaintiff is entitled to recover from the Defendant approximately $99,223.50 plus interest for legal services allegedly performed for the Harris County Municipal Utility District No. 3 based upon the theories of contract and quantum meruit; and WHEREAS, the Defendant has expressly denied and continues to deny any liability to Plaintiff whatsoever for any of the charges asserted or otherwise; and WHEREAS, nevertheless, mindful of the cost and expense associated with litigation, the Parties have agreed to compromise and settle the claims on the terms set out in this Agreement; NOW THEREFORE In consideration of the foregoing recitals, the mutual promises contained below, and the sum of FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00) paid directly to Attorney for Plaintiff, the receipt and sufficiency of which is hereby acknowledged, Plaintiff does hereby, for itself, its officers, employees, successors, assigns, personal representatives, heirs, executors, and administrators RELEASE, ACQUIT, and FOREVER DISCHARGE, INDEMNIFY, HOLD HARMLESS, and DEFEND the Defendant, all of its public officials, whether elected or appointed, agents, employees, attorneys, officers, successors in interest, and all of their respective heirs, executors, administrators, personal representatives, successors and assigns of and from any and all debts, damages, claims, causes of action, suits, liabilities, and demands of whatever nature, known or unknown, past, present, or future, whether contractual, statutory or in tort or otherwise, which Plaintiff might now have or that might subsequently accrue by reason of any matter or thing EXHIBIT A ® whatsoever. and particularly growing out of or in anyway connected with, directly or indirectly, compensation allegedly due for legal services performed, including, but not limited to, (1) any claims arising out of the agreement between Plaintiff and Harris County Municipal Utility District No. 3, dated June 25, 1981; (2) any claims concerning work allegedly performed on behalf of the Harris County Municipal Utility District No. 3 prior to the Defendant's assuming its obligations; (3) any claims conceming any work allegedly performed on behalf, at the request, or at the insistence of the Defendant in anyway related to the annexation of the Harris County Municipal Utility District No. 3; (3) any and all breach of any express or implied contractual claims; (4) any and all existing or future common law, statutes, civil rights, or constitutional claims based upon or in anyway connected with the annexation of Harris County Municipal Utility District No. 3; (5) any tort claims of any nature; (6) any and all existing or future rights and claims, whether at law, in equity, in contract or otherwise, that have been or that could have been asserted, to which reference is expressly made, regardless of the negligence or culpability of the Defendant. It is the expressed intention of the Parties hereto that the indemnity provided for in this paragraph is an indemnity by the Plaintiff to indemnify, protect, and defend the Defendant from the consequences of the Defendant's own negligence whether that negligence is the sole or a concurring cause of any debts, damages, claims, causes of action, suits, liabilities, and demands of whatever nature, known or unknown, past, present, or future, whether contractual, statutory or in tort or otherwise. It is further expressly agreed and understood by the Parties hereto that this release applies not only to all claims presently asserted against the Defendant in the above - captioned lawsuit but also to any and all other claims and causes of action that the Plaintiff has or may have against any of the persons or entities hereby released, including any claims for injuries or damages of any kind that at this time are unknown and unanticipated but that may develop in the future arising out of or connected in any manner with compensation for legal services arising out of the annexation by the Defendant of the Harris County Municipal Utility District No. 3. It is expressly understood and agreed that the terms hereof are contractual and not merely recitals and that the agreements herein contained and the consideration transferred is to compromise doubtful and disputed claims, avoid litigation, and buy peace, and that no payments made nor releases or other consideration given shall be construed as an admission of liability, all liability being expressly denied. It is further understood and agreed that the Plaintiff will present to the court above designated a motion for nonsuit and an agreed order of dismissal in the form attached hereto and labeled Exhibit "A," dismissing such cause in all respects with regard to Plaintiff and with prejudice to the rights of Plaintiff to refile same or any part thereof, and that all costs of suit are to be taxed against Plaintiff. The Parties hereby agree to be responsible for their own attorney's fees as well as any and all other costs and expenses incurred in connection with the above - referenced litigation. The Plaintiff expressly waives any claim to seek attorney's fees under any federal or state authority. Plaintiff represents and warrants that Plaintiff has been given an opportunity to consider this Agreement and to be fully advised by the counsel of Plaintiffs choosing regarding the meaning and the effect of this Agreement, that Plaintiff relies after consultation with his counsel wholly upon its ® own judgment, belief, and knowledge of the nature and extent of the damages alleged and the liability questions involved in the claim, and covenants that he has not been influenced to any extent whatsoever or induced to enter into this Agreement in reliance upon any statement, promise or representation of the Defendant or any of the other parties hereby released. Plaintiff, by his signature below, acknowledges that he has read this agreement, and that he fully understands the same, and that he has executed the Agreement of his own free will and accord. Plaintiff further represents and warrants that: (a) Plaintiff has not conveyed, transferred, assigned, pledged or otherwise encumbered any of his rights in the claims and that all of his interests are being completely released and discharged by this Agreement; (b) Plaintiff has the authority to enter into this Agreement and is doing so only after full understanding of the meaning and intent of this Agreement and all of its terms; and (c) Plaintiff shall be solely responsible for any and all federal, state and local tax consequences that result from his receipt of the settlement funds paid in accordance with this Agreement. It is further expressly understood that by entering into this Agreement, the Defendant makes no admission of liability of any sort to Plaintiff, which liability is expressly denied. Instead, this Agreement represents a full and complete settlement of any and all disputes among the Parties, to resolve once and for all every disputed claim that Plaintiff has asserted or could assert against the Defendant or the released parties. This Agreement represents the complete agreement of the Parties, and the Defendant has not agreed to do or omit to do anything not expressly set forth in this Agreement. This Agreement contains the entire agreemerit between the parties and constitutes the complete, final and exclusive embodiment of their agreement with respect to the subject matter herein. If any provision, section, exception, subsection, paragraph, sentence, clause or phrase of this Agreement shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, and to this end all provisions of this Agreement are declared to be severable. This Agreement shall become effective and enforceable immediately upon its execution by the parties hereto. This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 0 Signed on this the day of February, 1997. .ITI O T 0 El PLAINTIFF Signature Printed Name Title Signed on this the day of February, 1997. APPROVED AS TO FORM AND SUBSTANCE: C. Charles Dippel Attorney for Plaintiff 55 Waugh Drive, Suite 603 Houston, TX 77007 -5836 Karen L. Homer Assistant City Attorney, City of Baytown Attorney for Defendant P.O. Box 424 Baytown, TX 77522 ! I - 't . &.101 u ' DEFENDANT Bobby Rountree City Manager City of Baytown, Texas 0 STATE OF TEXAS C COUNTY OF HARRIS Before me on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed; that he executed the same as his free and voluntary act and deed after having it fully explained to him, and after having read it fully, and after realizing the effect thereof to be a full and final release and discharge of the City of Baytown, its officers, agents, and employees for any matter or thing dealt with in the foregoing instrument; and that the same was executed by him without any threat, force, fraud, duress, or representation of any kind by any person whomsoever. SUBSCRIBED AND SWORN before me on this day of February, 1997. Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared Bobby Rountree, City Manager of the City of Baytown, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me on this day of February, 1997. cAk-I h28\ 1egaMmith Murdaugh.SettlementAgreemcnt Release and Contract of Settlement -- Pace 5 Notary Public in and for the State of Texas