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Ordinance No. 8,716991014 -2 ORDINANCE NO. 8716 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A RELEASE AND SETTLEMENT AGREEMENT WITH, LONE STAR BUILDING,- LTD., -AND -PACER DEVELOPMENT CORPORATION PERTAINING TO THE CITY OF BAYTOWN'S ASSUMPTION OF CERTAIN OBLIGATIONS OF SAN JACINTO PLACE MUNICIPAL UTILITY DISTRICT NOS. 1, 2, 3, AND 4 UPON ANNEXATION; AUTHORIZING PAYMENT IN THE SUM OF ONE HUNDRED TWENTY -NINE THOUSAND NINE HUNDRED THREE AND 11 /100 DOLLARS ($129,903.11); AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. WHEREAS, Lone Star Building, Ltd., and Pacer Development Corporation (collectively referred to as "Claimants ") purportedly entered into agreements with San Jacinto Place Municipal Utility District Nos. 1, 2, 3, and 4, (collectively, whether singular or plural, the "MUD ") on or about March 14, 1984, for the construction and purchase of utility facilities and, in general, the development of the MUD; and WHEREAS, Claimants assert that they have expended certain funds in connection with the MUD and the construction of water and sewer facilities in the area serviced by the MUD; and WHEREAS, the City of Baytown (the "City ") annexed all of the area in the MUD on August 26, 1999; and WHEREAS, on such date, the City assumed all of the assets and obligations of the MUD pursuant to Section 43.075 of the Texas Local Government Code; and further, the City became obligated to reimburse Claimants for certain expenditures made in connection with the MUD pursuant to Section 43.0715 of the Texas Local Government Code; and WHEREAS, Claimants have agreed to accept a total of ONE HUNDRED TWENTY - NINE THOUSAND NINE HUNDRED THREE AND 11 /100 DOLLARS ($129,903.11), from the City, as payment in full for any and all outstanding claims that may exist for reimbursement under Section 43.0715 of the Texas Local Government Code or which could exist arising out of or in any way connected with Claimants' work or services rendered to or on behalf of the MUD; NOW THEREFORE 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 the City Clerk of the City of Baytown to execute and attest to the Release and Settlement Agreement with Lone Star Building, Ltd., and Pacer Development ® Corporation. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. 991014 -2a ® Section 2: That the City Council of the City of Baytown authorizes payment to Claimants in the amount of ONE HUNDRED TWENTY -NINE THOUSAND NINE HUNDRED THREE.AND 11 /.100 .DOLLARS ($129,903.11). 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 14th day of October, 1999. Aet6 C- PETE C. ALFARO, Mayor ATTEST: ��� " �- -? -/'/� -e� EILEEN P. HALL,, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, City Attorney 0 c: k1 h2MCityCounci ROrd inances\Release&SettlementAgreement4Pacer&LoneStarOrd inance 2 RELEASE AND SETTLEMENT AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § WHEREAS, the Parties to this Release and Settlement Agreement ( "Release" or "Agreement ") are Lone Star Building, Ltd., and Pacer Development Corporation, hereinafter collectively referred to as "Claimants," and the City of Baytown, Texas, along with its officers, agents, and employees, hereinafter collectively, whether singular or plural, referred to as "City "; and Claimants and City being collectively referred to as the "Parties;" and WHEREAS, Claimants purportedly entered into agreements with San Jacinto Place Municipal Utility District Nos. 1, 2, 3, and 4, collectively referred to herein, whether singular or plural, as the "MUD," on or about March 14, 1984, for the construction and purchase of utility facilities and, in general, the development of the MUD; and WHEREAS, Claimants assert that they have expended certain funds in connection with the MUDs and the construction of water and sewer facilities in the area serviced by the MUDS. WHEREAS, the City annexed all of the area in the MUD on August 26, 1999; and WHEREAS, on such date, the City assumed all of the assets and obligations of the MUD pursuant to Section 43.075 of the Texas Local Government Code, and the City became obligated to reimburse the Claimants for certain expenditures made in connection with the MUDs pursuant to Section 43.0715 of the Texas Local Government Code; and WHEREAS, Claimants have agreed to accept a total of ONE HUNDRED TWENTY -NINE THOUSAND NINE HUNDRED THREE AND 11 /100 DOLLARS ($129,903.11) (the "Settlement Amount "), from the City, as payment in full for any and all outstanding claims that may exist for reimbursement under Section 43.0715 .of the Texas Local Government Code or which could exist arising out of or in any way connected with Claimants' work or services rendered to or on behalf of the MUD; and WHEREAS, 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 I. RELEASE AND INDEMNITY In consideration of the foregoing recitals, the mutual promises contained below, and the payment of ONE HUNDRED TWENTY -NINE THOUSAND NINE HUNDRED THREE AND 11/100 DOLLARS ($129,903.11) to Claimants, the receipt and sufficiency of which is hereby acknowledged, Claimants do hereby, for their successors, assigns, personal representatives, heirs, executors, and administrators release, acquit, and forever discharge the City 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 Claimants might now have or that might subsequently accrue by Release And Settlement Anreement_ Page I EXHIBIT A reason of Claimants' rights to reimbursement for expenditures made in connection with the MUDs along with any matter or thing whatsoever and particularly growing out of or in any way connected with, directly or indirectly, Claimants' work and /or services to or on behalf of the MUDs, including, but not limited to, (1) any contractual claims; (2) any claims arising out of the reimbursement. provisions set forth in Section 43.0715 of the Texas Local Government Code; (3) any and all existing or future common laws, statutes, civil rights, or constitutional claims arising out of or in connection with Claimants' expenditures on behalf of the MUDs; (4) any tort claims of any nature arising out of or in connection with Claimants' expenditures on behalf of the MUDs and (5) 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 City (collectively the "Claims "). II. PURPOSE 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 payment made nor releases or other consideration given shall be construed as an admission of liability, all liability being expressly denied. III. ATTORNEY'S FEES 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 this Agreement and /or the Claimants' services to and /or on behalf of the City and the MUDs. Claimants expressly waive any claim to seek attorney's fees under any federal or state authority. IV. AGREEMENT READ AND UNDERSTOOD Claimants represent and warrant that they have been given an opportunity to consider this Agreement and to be fully advised by the counsel of their choosing regarding the meaning and the effect of this Agreement, that they rely after consultation with their counsel wholly upon their own judgment, belief, and knowledge of the nature and extent of the damages and injuries alleged and the liability questions involved in the claim, and covenant that Claimants have not been influenced to any extent whatsoever or induced to enter into this Agreement in reliance upon any statement, promise or representation of City or any of the other party. V. AUTHORITY ® Claimants confirm that it has full authority to execute this Agreement. Furthermore, by their respective officers' signatures hereinbelow, Claimants acknowledge that Claimants have read this Agreement, and that Claimants fully understand the same, and that Claimants have executed the Agreement of their own free will and accord. Claimants further represent and warrant that: Release And Settlement Agreement, Page 2 ® (a) Claimants have not conveyed, transferred, assigned, pledged or otherwise encumbered any of their rights in the Claims and that all of their interests arising in connection with the Claims are being completely released and discharged by this Agreement; and (b) Claimants' officers are of legal age and legally and fully competent to enter into this Agreement and are doing so only after full understanding of the meaning and intent of this Agreement and all of its terms. VI. ENTIRE AGREEMENT It is further expressly understood that by entering into this Release, the City makes no admission of liability of any sort to Claimants, 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 Claimants have asserted or could assert against the City in connection with the Claims. The City has not agreed to do or omit to do anything not expressly set forth in this Agreement. This Agreement contains the entire agreement between the Parties and constitutes the complete, final and exclusive embodiment of their agreement with respect to the subject matter herein. VII. SEVERABILITY 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. VIII. EFFECTIVE DATE This Release shall become effective and enforceable immediately upon its execution by Claimants and the City's delivery of the Settlement Amount. IX. CHOICE OF LAW AND VENUE This Release 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. X. HFAMNGS, ® The captions of the various articles of this Agreement are for convenience and ease of reference only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any part or parts of this Agreement. Release And Settlement Agreement, Page 3 XI. AMBIGUITIES In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Signed on this the day of 0606 E r , 1999. CLAIMANT PACER DEVELOPMENT CORPORATION, a Texas co o tion By: Signature Leo B. Womack Printed Name President Title Pacer Development Corporation Tax ID No. 74- 1876503 c/o Mr. Jeff Gilman Wilbanks & Gilman, P.C. 710 N. Post Oak Road, Suite 400 Houston, TX 77024 -3812 Signed on this the " day of Ddmbu- 31999. CLAIMANT TONE STAR BANK BUILDING, LTD., a Texas limited partnership By: Pacer Development,Co., a Texas general partnership, General Partner Leo B. Womack ge lilm n Lone Star Building, Ltd. Tax ID No. 76- 0089537 c/o Mr. Jeff Gilman ® Wilbanks & Gilman, P.C. 710 N. Post Oak Road, Suite 400 Houston, Texas 77024 -3812 Release And Settlement Agreement, Page 4 0 Signed on this the day of , 1999. CITY MONTE MERCER, City Manager City of Baytown, Texas ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me, Rebecca J. Cefalu , the undersigned notary public, on this day personally appeared Leo B. Womack , President of Pacer Development Corporation, X known to me; proved to me on the oath of ; or proved to me through his/her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (Check one) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he /she executed the same for the purposes and consideration therein expressed; that he /she executed the same as his/her free and voluntary act and deed after having it fully explained to him/her, 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 and its officers, agents, and employees for any matter or thing dealt with in the foregoing instrument; and that the same was executed by its officer or authorized agent without any threat, force, fraud, duress, or representation of any kind by any person whomsoever; and that the said Leo B. Wbrreck at the time of execution of the release was completely sober, sane and capable Release And Settlement Agreement, Page 5 of understanding the character of his/her acts and deeds and was in complete charge of all of his/her faculties and capable of executing this instrument and of understanding the significance of his/her acts. SUBSCRIBED AND SWORN before me on this 7th day of October � r r 1 STATE OF TEXAS § COUNTY OF HARRIS § 1999. Z6tary P c in a for the State of Texas Before me, Rebecca J. Cefalu , the undersigned notary public, on this day personally appeared George Gilman and Leo B. , Womack, Partners of Pacer Development Co., general partner of Lone Star Building, Ltd. X known to me; proved to me on the oath of ; or proved to me through his/her current (description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (Check one) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he /she executed the same for the purposes and consideration therein expressed; that he /she executed the same as his/her free and voluntary act and deed after having it fully explained to him/her, 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 and its officers, agents, and employees for any matter or thing dealt with in the foregoing instrument; and that the same was executed by its officer or authorized agent without any threat, force, fraud, duress, or representation of any kind by any person whomsoever; and that the said George Gilman and Leo B. Womack at the time of execution of the release was completely sober, sane and capable of understanding the character of his/her acts and deeds and was in complete charge of all of his/her faculties and capable of executing this instrument and of understanding the significance of his/her acts. SUBSCRIBED AND SWORN before me on this 7thday of October f r r . r c:klh 197\ Legal\ Release\ RcIease& DisbursementAgreenunt4PacerLoneS tar[ 005991 Clean Release And Settlement Agreement, Page 6 ••. fy:a�Cr--PL' bl' In and r the State of Texas