Ordinance No. 14,263ORDINANCE NO. 14,263
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 AND
MUTUAL RELEASE REGARDING CAUSE NO. 2019-34444, HUFF & MITCHELL,
INC. V. CITY OF BAYTOWN, IN THE 125TH JUDICIAL DISTRICT COURT OF
HARRIS COUNTY, TEXAS; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN IN THE AMOUNT OF ONE HUNDRED SEVENTY-FIVE THOUSAND
AND NOI100 DOLLARS ($175,000.00); AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
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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 Mayor and City Clerk of the City of Baytown to execute and attest to a Settlement Agreement
and Mutual Release regarding Cause No. 2019-34444, Huff & Mitchel!, Inc. v. City of Baytown, in the
125th Judicial District Court of Harris County, Texas. A copy of said agreement 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 Huff &
Mitchell, Inc., in the amount of ONE HUNDRED SEVENTY-FIVE THOUSAND AND NOI100
DOLLARS ($175,000.00) in accordance with the agreement authorized in Section I 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 City Council of the City of
Baytown, this the 24°i day of October, 2019.
DON CAPETILLO, May r
APPROVED AS TO FORM:
NACIO RAMIREZ, SR., C ty Attorney
COM01 Legal Karen Files -City Council.Ordinances\2019.October 24%Huff&MitchellSettlement.doc
Exhibit "A"
CAUSE NO. 2019-34444
HUFF & MITCHELL, INC. § IN THE DISTRICT COURT
vs. § OF HARRIS COUNTY, TEXAS
CITY OF BAYTOWN § 125`h JUDICIAL DISTRICT
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT ("Settlement Agreement") is entered into this
day of September, 2019 ("Effective Date") by, between, and among HUFF & MITCHELL,
INC. ("HMI") and CITY OF BAYTOWN (the "City"). The aforementioned parties to this
Settlement Agreement are at times referred to herein individually as "Party" or collectively as
"Parties".
WHEREAS, HMI entered into a Contract and Contract Addenda with the City for
replacement of the Garth Road Lift Station ("the Project"); and
WHEREAS, on or about May 17, 2019, HMI filed a lawsuit against the City seeking
compensation for additional work performed. The lawsuit is styled Cause No. 2019-34444, Huff
& Mitchell, Inc. v. City of Baytown, in the 1251h Judicial District Court of Harris County, Texas
(the "Lawsuit"); and
WHEREAS, the Parties wish to avoid further expense and inconvenience related to the
Lawsuit by entering into this Settlement Agreement and Mutual Release (the "Agreement').
NOW, THEREFORE, FOR AND IN CONSIDERATION of the promises and mutual
releases herein contained, the promises of payment to be made, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged and confessed, the Parties
have agreed, and do hereby agree, as follows:
Consideration.
A. The City shall pay HMI the sum of THREE HUNDRED FORTY-EIGHT
THOUSAND SIX HUNDERED SIXTY-TWO AND 89/100 DOLLARS
($348,662.89) in good and sufficient funds, as final payment to HMI for its work
on the Project, and in settlement of any disputes between the parties in the
Lawsuit (the "Payment").
B. The City shall cause the Payment to be issued in a single check, made out to HMI,
and delivered to the following address of counsel for HMI:
Huff & Mitchell, Inc.
c/o J. Michael Schiff
Andrews Myers, P.C.
1885 St. James Place, 151h Floor
Houston, Texas 77056
B. The consideration referenced herein and the mutual promises and assurances
contained in this Agreement reflect the only consideration for this Agreement and
the resolution and waiver of any claim HMI may have or had against the City
related to the Project and/or the Lawsuit. Each party will bear their own legal fees
and related costs.
Z. Release by HMI. HMI on behalf of itself and its agents, representatives, partners, limited
partners, affiliates, members, officers, directors, principals, shareholders, insurers,
owners, heirs, transfers, and assigns, fully, finally, and forever releases the City and its
agents, representatives, partners, limited partners, affiliates, members, officers,
employees, directors, principals, shareholders, insurers, owners, heirs, transfers, and
assigns of and from any and all claims, causes of action, demands, contribution, and
indemnity, and all other rights which HMI has or had arising out of, relating to, or in any
manner concerning the Project and Lawsuit. The purpose of this Settlement Agreement is
to buy peace and HMI agrees and acknowledges that it is releasing any and all claims or
causes of action that have been brought or could have been brought in the Lawsuit or
otherwise.
4. Release by the City. The City on behalf of itself and its agents, representatives, partners,
limited partners, affiliates, members, officers, directors, principals, shareholders, insurers,
owners, heirs, transfers, and assigns, fully, finally, and forever releases HMI and its
agents, representatives, partners, limited partners, affiliates, members, officers, directors,
principals, shareholders, insurers, owners, heirs, transfers, and assigns of and from any
and all claims, causes of action, demands, contribution, and indemnity, and all other
rights which the City has or had arising out of, relating to, or in any manner concerning
the Lawsuit, excluding those related to or in any manner concerning the warranty HMI is
required to provide the City pursuant to the Contract and Contract Addenda for the
Project. The purpose of this Settlement Agreement is to buy peace and the City agrees
and acknowledges that it is releasing any and all claims or causes of action that have been
brought or could have been brought in the Lawsuit.
5. Dismissal. Within five (5) days after the City has delivered the Payment to HMI and the
Payment has cleared funding, HMI will file a Notice of Nonsuit with Prejudice in the
Lawsuit.
b. No Admission of Liability. This Settlement Agreement is entered into solely for the
purposes of compromising and settling the Lawsuit. Nothing contained herein should be
considered an admission of liability or wrongdoing by any Party. Each Party has agreed
to the terms of this Settlement Agreement solely to avoid the time, expense, and
uncertainty of continued dispute and to buy peace.
7. Benefit of Counsel. Each Party to this Settlement Agreement has had the benefit of its
own counsel and has independently determined that it is in such Party's best interests to
enter into this Settlement Agreement. No Party has relied on any promises or
representations by any other Party, counsel for any other Party, in agreeing to the terms
of this Settlement Agreement or in deciding to execute this Settlement Agreement.
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8. Bindinp, Effect and Benefit. This Settlement Agreement is binding upon and shall inure
to the benefit of the Parties named herein and their respective successors, assigns, and
legal representatives. All releases recited herein release and include, and inure to the
benefit of, not only the Parties named, but also to all Parties' respective officers,
employees, partners, members, limited partners, shareholders, directors, parent
companies, affiliated companies, liability insurers, excess insurers, experts, attorneys, and
heirs.
9. Construction. Each Party adopts this Settlement Agreement as its own and as the
product of a group drafting effort, prepared with the benefit of independent counsel, and
not to be construed more favorably for or against any Party to this Settlement Agreement.
10. Ownership of Claims. The Parties warrant and represent that they are the sole owners of
the claims and responsibilities herein released, and that they have not assigned, sold,
encumbered, or otherwise transferred any rights in, or any amount of ownership of, their
respective claims or obligations herein released.
11. Authority to Settle. The individuals executing this Settlement Agreement warrant,
represent and guarantee that they are competent and authorized to do so on behalf of the
Parties indicated herein.
12. Provisions Severable. The provisions of this Settlement Agreement are severable. If any
portion, provision, or part of this Settlement Agreement is held, determined, or
adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such
portion, provision or part shall be severed from the remaining portions, provisions or
parts of this Settlement Agreement and shall not affect the validity or enforceability of
any remaining portions, provisions or parts.
13. Waiver. No waiver of any provision of this Settlement Agreement, or breach hereof,
shall be effective unless it is in writing, signed by all of the Parties.
14. Execution of Further Documents. The Parties agree to execute such other and further
documents, releases, and agreements, consistent with this Settlement Agreement, as may
be required by the Parties and their insurers, if any, to fully effectuate the intent of this
Settlement Agreement.
15. Governing Law. This Settlement Agreement shall be governed by, and construed under,
the laws of the State of Texas, and any disputes arising out of or related to this Settlement
Agreement shall be resolved by litigation in the civil district courts of Harris County,
Texas.
16. Execution in Counterparts. This Settlement Agreement may be executed in multiple
counterparts, including facsimile counterparts with facsimile signatures, each of which
shall constitute an original and shall be binding upon each of the Parties that sign the
same. After all Parties have signed, the signature pages may be removed and attached to
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a single copy to form one integrated instrument reflecting the signatures and agreement
of all Parties.
17. Entire Understanding, No Verbal Agreements, and No Verbal Modifications. This
Settlement Agreement and the documents referred to herein embody the entire Settlement
Agreement with respect to the respective rights, obligations, and liabilities of the Parties
and supersedes all prior agreements and understandings, if any, relating to the subject
matter hereof. This Settlement Agreement may be amended only by an instrument in
writing executed by all the Parties. THIS SETTLEMENT 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.
AGREED TO and executed on the Effective Date.
HUFF & MITCHELL, INC.
CITY OF BAYTOWN
Title: Title: RICHARD L. DAVIS, City Manager
Date: Date:
ATTEST:
By:
Title:
Date:
ATTEST:
M.
Title: LETICIA BRYSCH, City Clerk
Date:
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