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ST9304-AG 880426SUBMISSION ~EADLINE: 5:00 p,~. Monday - 8 Days Preceding Ci~ Council Meeting Rev.: Effec~iv~ 1/20/88 AGENDA REQUEST FORM FOR CITY COUNCIL MEETING: ^prJ] Z6, 1988~ I. REF/FILE NUMBER : CONIR^CIS/^GREEMENIS II. .ITEM CAPTION : Discussion a.n.d consider approval of a settlement~ a~reement with TU Electric and authorizing the'Mayor to sign. III. ACTION RECOMMENDED : City Attorney Larry Jackson recommends approval. IV. REP. IN ATTENDANCE V. NOTIFICATION TO : A: STAFF - B: OTHER - City Atfnrn~y larry ,l~k_~nn , VI. METHOD OF CONTACT : DATE : FINANCIAL REVIEW : 1. BUDGETED ITEM 2. BUDGET AMOUNT 3. ESTIMATED AMOUNT FOR THIS ITEM 4. AMOUNT OVER OR UNDER BUDGET 5. LOW BIDDER RECOMMENDED SOURCE OF FUNDING CO'S OR BONDS FUNDS (Series or year authorized) OPERATING BUDGET (Account Number) OTHER AGENDA REQUEST FORM DMEMOI APPROVED BY CITY MANAGER : ITEM NUMBER ~ YES NO YES NO April 18, 1988 TO: FROM: SUBJECT: Alan D. Ratliff, City Manager Lawrence W. Jackson, City Attorney Agreement with Texas Utilities Attached for Council review is the final document of a General Release and Settlement Agreement with Texas Utilities Electric Company. A copy of the final document has already been provided to Councilman Dean Wilkerson for his review. You will recall that a draft of this document was presented to the Council in a previous executive session. The attached copy represents the agreement that is being recommended to the Council for approval. Should you have any questions, please let me know. LJ/ADR/041888 WHEREAS, the Department of Works for the City of Dallas has informed Coppell that a maximum allowable assessment for TU Electric concerning the Project would be $125,344.67. WHEREAS, without admitting the various claims and allegations made by each party hereto, in light of the uncertainties of litigation and being desirous of avoiding additional costs that would be incurred by continued litigation between TU Electric and Coppell, said parties are desirous of resolving their differences and compromising and settling all claims alleged, threatened, involved, asserted or which could have been alleged or asserted by either party in the above referenced causes of action and which, whether known or unknown, relate to or grow out of the Assessment, or any damages involved therein, it being the desire and intention of TU Electric and Coppell to effect full and complete settlement, accord and satisfaction of all claims or causes of action of any type whatsoever concerning the Assessment; NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, IT IS HEREBY AGREED AS FOLLOWS: THAT Coppell for and in consideration of the sum of ONE HUNDRED TWENTY-FIVE THOUSAND, THREE HUNDRED FORTY-FOUR AND 67/100 ($125,344.67) in cash, the receipt, sufficiency and adequacy of which are hereby acknowledged, for itself and on behalf of its officers, councilmen, citizens, agents, employees, legal repre- sentatives, successors, predecessors, affiliates, assigns or any entity operating or doing business under those names, does hereby release, acquit and forever discharge TU Electric, and its officers, ~irectors, shareholders, agenYs, employees, legal repre- GENERAL RELEASE AND SETTLEMENT AGREEMENT - Page 2 sentatives, successors, predecessors, parents and subsidiary cor- porations, affiliates, partners, owners and assigns or any entity operating or doing business under those names, from any and all liability under the Assessments and any and all claims, assess- ments, levies, liens, demands, causes of action or controversies of any kind whatsoever, whether known or unknown, whether in tort or in contract, whether now existing or accruing in the future, which Coppell has held or holds against said released persons arising out of the Assessment related to the Project, including, but not limited to claims of common law or pursuant to the laws of the United States and/or of the State of Texas or any other laws or statutes, and of all claims, assessments, levies, liens, or new or hereafter arising causes of action, arising out of the Assessment 'related to the Project, which could have been alleged or asserted in the above entitled and numbered cause of action or in any other pleadings of Coppell in the above entitled action or which relate in any way, directly or indirectly, to the Assessment or any and all assessments, liens or levies of any kind arising out of the Project. It is further agreed and understood that upon payment to Coppell of the sum specified herein, TU Electric does hereby authorize, direct and instruct its attorneys of record to dismiss the above styled and numbered causes with prejudice, with all costs to be taxed against the party incurring same and further to execute and submit to the Court the Motion to Dismiss with Prejudice and Agreed Order, copies of which are attached hereto as Exhibits "A" and "B" and incorporated herein by reference or such a motion and order of substantially the same terms as are agreeable to TU Electric and Coppell. GENERAL RELEASE AND SETTLEMENT AGREEMENT - Page 3 It is further agreed and understood that Coppell does hereby authorize and direct its attorneys of record to execute and submit to the Court the above described Motion to Dismiss and Agreed Order. It is further agreed and understood that upon payment to Coppell of the sum specified herein, Coppell shall immediately cause a release of special assessment lien to be duly executed in substantially the form of Exhibit "C" attached hereto and incor- porated herein. It is further agreed and understood that the obligations hereunder of each party including, without limitation, payments of the sum specified herein, are expressly conditioned upon Coppell's first obtaining ratification and approval from the City of Dallas of the Project insofar as it relates to TU Electric up to a maximum allowable assessment of $125,344.67, and TU Electric hereby agrees to use reasonable efforts to cooperate with Coppell in its obtaining such approval and ratification. That further, in order to procure this Release, Coppell does hereby warrant and represent that there are no liens of any nature, or assignments, or subrogation interests with reference to the monies being paid to Coppell under this compromise settlement and that Coppell is authorized to execute this Agreement on behalf of itself, and that there are no valid claims from anyone else to said sums and that it does, for the same consideration, agree to fully indemnify and hold harmless TU Electric against any and all claims by other persons to the proceeds of this compromise settlement. GENERAL RELEASE AND SETTLEMENT AGREEMENT - Page 4 It is understood that this settlement is a compromise of doubtful and disputed claims; that same are disputed as to legal responsibility of each respective party; and the payment and acceptance is not to be construed as an admission of liability on the pa~t of any party and is intended merely to avoid unnecessary and burdensome litigation and buy their peace as to each other. This Release contains the entire agreement between the parties hereto, and the terms of this agreement are contractual and not merely recitals. This Release shall be and is binding upon the heirs, successors and assigns of the undersigned parties. In making this Release, the parties hereto have not relied upon any statement or representation pertaining to this matter made by the person, persons, firms, organizations or corporations who are hereby released or by any person or persons representing them. The undersigned parties acknowledge that they have been represented by independent counsel in connection with this action and the execution of this Release, that they have carefully read the foregoing Release and discussed the contents thereof with their attorneys and that they signed the same as their own free act and deed. WITNESS OUR HANDS this day of , 1988. TEXAS UTILITIES ELECTRIC COMPANY By: GENERAL RELEASE AND SETTLEMENT AGREEMENT - Page 5 CITY OF COPPELL, TEXAS APPROVED AND AGREED: WORSHAM, FORSYTHE, SAMPELS & WOOLDRIDGE By: By: Spencer C. Relyea State Bar No. 16720000 Wm. Stephen Boyd State Bar No. 02780500 32nd Floor, 2001 Bryan Tower Dallas, Texas 75201 (214) 979-3000 ATTORNEYS FOR PLAINTIFF SALLINGER, NICHOLS, JACKSON KIRK & DILLARD By: Lawrence W. Jackson State Bar No. 10485000 1800 Lincoln Plaza 500 North Akard Street Dallas, Texas 75201 (214) 954-3333 ATTORNEYS FOR DEFENDANT GENERAL RELEASE AND SETTLEMENT AGREEMENT - Page 6 STATE OF TEXAS COUNTY OF DALLAS BEFORE ME, the undersigned authority, on this day personally appeared , , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said Texas Utilities Electric Company, a cor- poration, and that he executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the , 1988. day of My Commission Expires: Notary Public in and for the State of Texas STATE OF TEXAS : COUNTY OF : BEFORE ME, the undersigned authority, on this day personally appeared , , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said CITY OF COPPELL, TEXAS, a municipal corporation, and that he executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the , 1988. day of My Commission Expires: Notary Public in and for the State of Texas GENERAL RELEASE AND SETTLEMENT AGREEMENT - Page 7 NO. 86-15047 TEXAS UTILITIES ELECTRIC COMPANY : : Plaintiff, : : VS. : CITY OF COPPELL, TEXAS .: : Defendant. : IN THE DISTRICT COURT 14TH JUDICIAL DISTRICT DALLAS COUNTY, TEXAS JOINT MOTION TO DISMISS WITH PREJUDICE NOW COME Plaintiff, Texas Utilities Electric Company, and Defendant, City of Coppell, Texas, herein and make and file this their Joint Motion to Dismiss with Prejudice, and as reasons therefor, would show unto the Court as follows: 1. The parties would show to the Court that all matters in controversy have been fully compromised and settled between and among the parties hereto. WHEREFORE, PREMISES CONSIDERED, the parties move the Court to dismiss their cause of action and all claims that could have been alleged or asserted by any party therein with prejudice to file or refile the same. Respectfully submitted, WORSHAM, FORSYTHE, SAMPELS & WOOLDRIDGE By: Spencer C. Re!yea State Bar No. 16720000 Wm. Stephen Boyd State Bar No. 02780500 32nd Floor, 2001 Bryan Tower Dallas, Texas 75201 (214) 979-3000 ATTORNE"$ FOR PLAINTIFF JOINT MOTION TO DISMISS WITH PREJUDICE - Page 1 ~H~"~'~ SALLINGER, NICHOLS, JACKSON KIRK & DILLARD By: Lawrence W. Jackson State Bar No. 10485000 1800 Lincoln Plaza 500 North Akard Street Dallas, Texas 75201 (214) 954-3333 ATTORNEYS FOR DEFENDANT JOINT MOTION TO DISMISS WIT~ PREJUDICE - Page 2 NO. 86-15047 TEXAS UTILITIES ELECTRIC COMPANY Plaintiff, vs. CITY OF COPPELL, TEXAS Defendant. IN THE DISTRICT COURT 14TH JUDICIAL DISTRICT DALLAS COUNTY, TEXAS AGREED ORDER OF DISMISSAL On this day came on to be heard the Joint Motion of Plaintiff, Texas Utilities Electric Company, and Defendant, City of Coppell, Texas, herein to Dismiss with PrejUdice and the Court having considered the same together with the reasons therefor is of the opinion that said motion should in all things be granted. IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the above entitled and numbered cause of action and all claims that could have been alleged or asserted by any party therein be, and are hereby, dismissed with prejudice to the filing or refiling of same. SIGNED this day of , 1988. JUDGE PRESIDING AGREED ORDf1 OF DISMISSAL - Page 1 APPROVED AND AGREED: WORSHAM, FORSYTHE, SAMPELS & WOOLDRIDGE By: Spencer C. Relyea State Bar No. 16720000 Wm. Stephen Boyd State Bar No. 02780500 32nd Floor, 2001 Bryan Tower Dallas, Texas 75201 (214) 979-3000 ATTORNEYS FOR PLAINTIFF SALLINGER,., NICHOLS, JACKSON KIRK & DILLARD By: Lawrence W. Jackson State Bar No. 10485000 1800 Lincoln Plaza 500 North Akard Street Dallas, Texas 75201 (214) 954-3333 ATTORNEYS FOR DEFENDANT AGREED ORDER OF DISMISSAL - Page 2