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Ordinance No. 11,715(")RDINANCE NO. 11,715 AN ORDINANCE` OF "T "111"; ("ITY OFBAYTOWN, TEXAS, AUTHORIZING A SETTLI'MENT AGREENII� -INT WITH AMERICAN TRAFFIC SOLUTIONS, INC., AND A1,11-FIN RUSSEU, CONC11,RNING CAUSE' NO. 2010- 55364, 4A,fE1 ?X,4Ai' TR/I "FA,' SOL LYM)AW, ET ,4L. K ('17T OF11,41TOR'N, IN TI 11' I I'" JUDICIAL DISTRICT ('.',OURTOF HARRIS COUNTY, TU'XAS, AND CAUSE NO, 2011-09338, ANIJ,,RIGIN IN(,, 1'. ("ITY 01- IM1701YN, IN 1 I lk 11"" JUDIUAL DIS"FRICT COURT 01: HARRIS COUNTY, I -XAS; ALYFHORIZING PAYMF'NT IN ACCORDANCE' WITH SAID AG1(F'U1,N/IFNT; AND PROVIDING 1`4ORTH F F FFFCTIV F". DATETHERF101'. 131;' IT ORDAINED BY 11 IE'CITY COUNCIL Section 1: That the City, Council ofthe City of Baytown,'I"exas, hereby authorizes, tile City Attorney to CXCCUte as Settlement Agreement with American Traffic Solutions, Inc., and Allen Russell concerning Cause 'No. 2010-55364, r'In wricwl Trqffic Solutions, el ill, v, 01 ' 1) (±'BqYfown, in the I I"' Judicial District Court of Harris C0U11t)',Texas; and Cause No, 2011-09338,.4snericlin Trqffic Solutions, hic., v, Cio, cif &xwoivn, in the I I"' Judicial District Court offlarris County, Texas. A copy ot'said agreement is aattached hereto as E'xhibit -A"and incorporated herein flor all intents and purposes. Section 2: That the City C01,11161 of the City of Baytown, Texas, authorizes payment 11s specified in the Settlement Agreement referenced in Section I hcrcoE Section 3: This ordinance shall take effect in,miediately from and after its passag;e by the City Council ofthe City of` Baylown. Z1111) INTRODU'U'D, RF.AD and PASSFID by the affirmative vote City Council of' tile City of Baytown this the 25'�'Jay ofALIgUS1, 2011. S J, 1(11 01 1 LETIC1111 T W, S9J ., APPROVI"D ASTO FORNt SR., Attorney ACIO RAMIRFZ, SR., 'it., c-4, 6 DONCARLOS, N4 F,Augusi 25"Sell lei � lentA el cc I I w m(Ird inanceR, doc EXHIBIT "A" Settlement Agreement THE STATE OF TEXAS COUNTY OF HARRIS § This Settlement Agreement (the -Agreement "), made effective as of August 25, 2011, is entered into by and among Plaintiff American Traffic Solutions, Inc. ( "ATS "), Plaintiff Allen Russell ("Russell ") and Defendant the City of Baytown, Texas ("Baytown "). Whereas, Plaintiffs ATS and Russell filed suit (Cause No. 2010 - 55364) on September 2, 2010, in the 11 th Judicial District Court of Harris County, Texas, against Defendant Baytown to seek a judicial opinion on the Plaintiffs' sole allegation that the camera election ordered by the City Council of Baytown held in November 2010, was ordered without proper authority as a result of the untimely submission of a petition pursuant to the Baytown City Charter. Whereas, Plaintiffs ATS and Russell filed suit (Cause No. 2011- 09338) on February 14, 2011 in the 11 w Judicial District Court of Harris Country, Texas, against Defendant Baytown concerning Plaintiff's Professional Services Agreement for a Photographic Traffic Signal Enforcement System ( "the Program "), which were performed in Baytown, Texas and Scottsdale, Arizona. Whereas the Parties are represented by legal counsel and seek to amicably resolve these matters in order to avoid costly litigation and the risk of an unfavorable outcome. IT IS THEREFORE STIPULATED AND AGREED BETWEEN THE PARTIES AS FOLLOWS: 1. Plaintiffs ATS and Russell along with the Defendant Baytown hereby agree to rile of record the Judgment in the form attached as Exhibit A in Harris County, Texas. Should the Judgment not be signed by the presiding judge. Plaintiffs ATS and Allen Russell agree to rile any and all other documents necessary to dismiss with prejudice their claims asserted against Baytown in Cause No. 2010- 55364. 2. ATS and Russell do hereby expressly, fully, finally, completely and absolutely RELEASE, ACQUIT and FOREVER DISCHARGE the City of Baytown, Texas OF AND FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, REMEDIES, CAUSES OF ACTION, DEBTS, LIABILITIES, OBLIGATIONS, CONTRACTS, DAMAGES, COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND ALL COSTS OF COURT OR OTHER PROCEEDINGS), EXPENSES AND LOSSES OF EVERY KIND OR NATURE, whether arising by contract, tort or other theory, at this time known or unknown, direct or indirect, fixed or contingent, in law, by statute, by regulation, by court order, or in equity, that ATS and Russell had, now has, or hereafter can, shall or may have, for, upon or by reason or arising out of or related directly or indirectly to the events or claims giving rise to the above- referenced litigation, including without limitation, any occurrence giving rise to this litigation, or that was brought or could have been brought in this litigation or otherwise. 3. The City of Baytown, Texas does hereby expressly, fully, finally, completely and absolutely RELEASE, ACQUIT and FOREVER DISCHARGE ATS OF AND FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, REMEDIES, CAUSES OF ACTION, DEBTS, LIABILITIES, OBLIGATIONS, CONTRACTS, DAMAGES, COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND ALL COSTS OF COURT OR OTHER PROCEEDINGS), EXPENSES AND LOSSES OF EVERY KIND OR NATURE, whether arising by contract, tort or other theory, at this time known or unknown, direct or indirect, fixed or contingent, in law, by statute, by regulation, by court order, or in equity, that the City of Baytown, Texas had, now has, or hereafter can, shall or may have, for, upon or by reason or arising out of or related directly or indirectly to the events or claims giving rise to the above - referenced litigation, including without limitation, any occurrence giving rise to this litigation, or that was brought or could have been brought in this litigation or otherwise. 4. It is the express intent of all the parties hereto that this instrument operate as a full, final and complete release of any and all claims that they may have or ever had against any of the other parties to this agreement, regardless of whether such claims exist or may ever have existed under any state law, federal law or any foreign jurisdiction's law. The City of Baytown, Texas expressly waives sovereign immunity and governmental immunity to the extent such defenses would be available in any efforts to enforce the terms of the Settlement Agreement as stated herein. 5. In exchange for these releases, Defendant agrees to pay a total sum of ONE MILLION DOLLARS ($1,000,000.00) to Plaintiff on or before 12:00 p.m. CST, October 15, 2011. Defendant further agrees to forgive any sums allegedly due and owing to it by Plaintiff. All costs of court and fees and expenses will be borne by the party incurring same. All parties acknowledge and agree as to the adequacy and sufficiency of the consideration for this release. 6. ATS will have until thirty (30) days from the date of receipt of the $1,000,000.00 payment to remove all cameras and equipment from the right- of -ways of the City of Baytown, Texas, and to restore the property to the pre - camera condition or better. ATS will bear all costs and expenses associated with said removal. 7. The Parties will enter into an Agreed Judgment in the form attached as Exhibit B. The Parties agree that the Agreed Judgment may be filed of record in Harris County, Texas. The parties agree to file any and all other documents necessary to accomplish this Agreement, including Defendant's non -suit with prejudice of their counterclaims currently asserted in this lawsuit. 8. All parties acknowledge that they have read this Agreement and have had the advice of independent counsel. They further acknowledge that this Agreement is a full and final release. 9. This Agreement represents the complete and final agreement between the parties hereto with respect to the subject matter contained herein and supersedes completely any prior agreement between them. This Agreement may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements between the parties. There are no unwritten oral agreements between the parties. Approved as to Form and Substance: ANDY TAYLOR & ASSOCIATES, P.C. LIM Andy Taylor State Bar No. 19727600 405 Main Street, Suite 200 Houston, Texas 77002 Telephone: (713) 222 -1817 Facsimile: (713) 222 -1855 Attorney for the Plaintiffs THE CITY OF BAYTOWN, TEXAS By. C' Ignacio Ramirez, Sr. City Attorney State Bar No. 16501900 City of Baytown P.O. Box 424 Baytown, Texas 77522 Telephone: (281) 420 -6507 Facsimile: (281) 420 -6586 Attorney for the Defendant EXHIBIT "A" CAUSE NO. 2010-55364 AMERICAN TRAFFIC SOLUTIONS, § IN THE DISTRICT COURT INC., and ALLEN RUSSELL § Plaintiffs § V. § OF HARRIS COUNTY, TEXAS THE CITY OF BAYTOWN, TEXAS § Defendant § 11 rIt JUDICIAL DISTRICT JUDGMENT On the , this Cause came to be heard. Plaintiffs American Traffic Solutions, Inc. and Allen Russell ( "Plaintiffs ") and Defendant City of Baytown ( "Baytown ") appeared by and through their attorneys of record and announced ready for trial. The Court, after considering the Agreed Statement of Facts and applicable law, is of the opinion that the contested election held on November 2, 2010 ( "Special Election ") for the approval or rejection of a proposed Initiative, related to Baytown's Automated Photographic Traffic Signal Enforcement Program, was an election on an untimely referendum and, therefore, void.1 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the results of the Special Election are hereby declared VOID and without any legal effect for all purposes. All attorneys' fees and costs of court are taxed against the party incurring the same. All other relief not expressly granted herein is denied. This is a Final Judgment. Signed on this the of September, 2011. Judge Mike Miller, presiding 1 See City uJ'Huustun v Ain. Trg1fir Suhtuons. /rye., No. 10 -cv -04545 (S. Dist. Tex. June 17, 201 1) (opinion on summary judgment) ; Ives v. The Cif)- gVullege Stutiun, No. 9- 2877 -85 (D. Tex. Dec. 3. 2009) (final judgment). Indement, Page I APPROVED AS TO FORM: ANDY TAYLOR & ASSOCIATES, INC. Andy Taylor State Bar No. 19727600 405 Main Street, Suite 200 Houston, TX 77002 Telephone: (713) 222 -1817 Facsimile: (713) 222 -1855 Roger E. Gordon State Bar No. 24043697 The Law Office of Roger Gordon 901 S. Mopac Expressway Building One, Suite 300 Austin, TX 78746 Telephone: (512) 636 -2540 Facsimile: (512) 692 -2533 Attorneys for the Plaintiff CITY OF BAYTOWN #99999969 L nacio Ramirez, Sr. `City Attorney State Bar No. 16501900 P.O. Box 424 Baytown. 'fX 77522 Telephone: (281) 420 -6508 Facsimile: (281) 420 -6586 Attorney tar the Det'endant 1udgsipm , Page 2 EXHIBIT "B" CAUSE NO. 2011 -09338 AMERICAN TRAFFIC SOLUTIONS, § IN THE DISTRICT COURT INC. § Plaintiff § V. § OF HARRIS COUNTY, TEXAS THE CITY OF BAYTOWN, TEXAS § Defendant § l lT11 JUDICIAL DISTRICT AGREED JUDGMENT The Court, having been advised that Plaintiff American Traffic Solutions, Inc., ( "Plaintiff') and Defendant City of Baytown ( "Defendant ") have agreed to resolve any and all claims, as evidenced by the signatures of their counsel below, is of the opinion that all causes of action asserted against Defendant should be dismissed with prejudice to refiling same. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that this suit and all causes of action against Defendant, the City of Baytown, Texas are dismissed with prejudice to refiling same and that all taxable costs have been satisfied. The claim - preclusive effect of this judgment is a bar on all of Plaintiffs claims asserted in this lawsuit, as well as any and all factually - related claims that could have been asserted in this lawsuit, but were not asserted. All attorneys' fees and costs of court are taxed against the party incurring the same. All other relief not expressly granted herein is denied. This is a Final Judgment. Signed on this the of September, 2011. Judge Mike yiiller, presiding Judgment, Rige I APPROVED AS TO FORM & SUBSTANCE: ANDY TAYLOR & ASSOCIATES, INC. Andy Taylor State Bar No. 19727600 405 Main Street, Suite 200 Houston, TX 77002 Telephone: (713) 222 -1817 Facsimile: (713) 222 -1855 Roger E. Gordon State Bar No. 24043697 The Law Office of Roger Gordon 901 S. Mopac Expressway Building One, Suite 300 Austin, TX 78746 Telephone: (512) 636 -2540 Facsimile: (512) 692 -2533 Attorneys for the Plaintiff CITY OF BAYTOWN #99999969 C Ignacio Ramirez. Sr. City Attorney State Bar No. 16501900 P.U. Box 424 Ba%to%%n. TX 775„ Telephone: ( 281) 420 -6508 Facsimile: ( 281) 420 -6586 Attorney liar the Detendant Judgment. Went. Page _'