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R-02-03-05-4A - 3/5/2002RESOLUTION NO. R- 02- 03 -05 -4A WHEREAS, the City of Round Rock ( "City ") is the defendant in Cause No. 00 223 - 0277; Ramtron, Inc. vs. City of Round Rock, and WHEREAS, a proposal has been made to settle the lawsuit on terms acceptable to the City, and WHEREAS, the City Council wishes to authorize the Mayor to execute a Full and Final Mutual Settlement Agreement, Release, and Waiver for the above referenced cause, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Full and Final Mutual Settlement Agreement, Release, and Waiver in Cause No. 00 223 - C277; Ramtron, Inc. vs. City of Round Rock, a copy of said Agreement being attached hereto as Exhibit "A" and incorporated herein. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 5th day of Marc ATTEST CHRISTINE R. MARTINEZ, City Secret o"MA flax\ o: \ \RESOLUTI \R20305A,W,Df, ,e retica m1 1 ; R4i E: ' A. STLUKA, J , Mayor City of Round Rock, Texas FULL AND FINAL MUTUAL SETTLEMENT AGREEMENT, RELEASE, AND WAIVER This Full and Final Mutual Settlement Agreement, Release and Waiver (the "Agreement ") is made and entered into on this the day of March, 2002, by and among the CITY OF ROUND ROCK ( "CITY ") and RAMTRON, INC., ( "RAMTRON "), hereinafter collectively referred to as ( "Parties "). I. RECITALS COpy WHEREAS, there is a lawsuit currently pending in Williamson County, Texas under cause number 00- 223 -C277 and styled, Ramtron, Inc., Plaintiff, v. City of Round Rock, Texas, Defendant, ( "Lawsuit ") wherein RAMTRON alleged causes of action against the CITY for inverse condemnation, regulatory takings, and violations of federal and state constitutional provisions, and WHEREAS, CITY denies and continues to deny each of the allegations made by RAMTRON in this lawsuit, and WHEREAS, this Agreement, and the execution hereof does not, and is not intended to be, construed to be, or is an admission of any fault or wrongdoing by or on behalf of Plaintiffs or Defendants, all such claims having been expressly denied heretofore, and the Parties continue to deny the same; and WHEREAS, all provisions of this Agreement are contractual in nature, and not mere recitals only; and WHEREAS, the purpose of this Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. WHEREAS, the Parties enter into this Agreement solely to terminate and settle those disputes and controversies existing between the Parties relating to the reservation of right way and the approval ofRAMTRON's subdivision plat, in an effort to minimize costs, expenses, attorney's fees, and to buy peace. NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the incorporation of the above Recitals, the Parties hereto agree as follows: Snllementaagreemem.wpd (00022205.WPD; I) II. DEFINITIONS 1. As used in this agreement, the terms "Agreement," "CITY," " RAMTRO " "Lawsuit" and "Parties," shall have the respective meanings assigned to them in the Recitals, above. 2. "Representatives" of a person or entity shall mean and include all of that person's or entity's past or present principals, agents, servants, employees, attorneys, consultants, experts, partners (both general and/or limited), equity participants, officers, directors, shareholders, parent companies, subsidiaries, affiliates, predecessors, successors, assigns, estates, beneficiaries, heirs, devisees, legatees, trustees, and personal representatives. 3. As used in this Agreement, the term "Claims" shall mean and refer to any and all claims of any kind or character whatsoever, including, without limitation, claims for regulatory takings, inverse condemnation dimunition in property value, violations of state and federal contititional provisions, fraud, negligence, gross negligence, deceit, intentional infliction of emotional distress, breach of any express or implied duty of good faith and fair dealing, or any other claim or cause of action, whether arising in contract or tort. Under this definition, "Claims" includes, BUT IS NOT LIMITED TO, any and all claims, demands, lawsuits, debts, accounts, covenants, agreements, actions, cross- actions, rights ofrecovery, liabilities, obligations, losses, costs, expenses, remedies and causes of action of any nature, whether in contract or in tort, whether based upon fraud or misrepresentation, breach of duty, or common law, or arising or by virtue of any judicial decision, federal or state statute or regulation, for past, present and future injuries, property or economic damage, any act or omission or claim asserted or which could have been asserted in a cause of action filed in District Court, and for all other losses and damages of any kind, including, BUT NOT LIMITED TO, the following: all actual damages; all exemplary, punitive and statutory damages; all penalties of any kind, including but not limited to any and all damage to business reputation; lost profits or good will; consequential damages; and pre - judgment and post judgement interest, costs and attorneys' fees. III. AGREEMENTS 1. In consideration of the total sum of $130,000.00 (One Hundred Thirty Thousand and No /100 Dollars) ( "Settlement Sum ") paid by CITY to RAMTRON, the receipt and sufficiency of which is hereby acknowledged by RAMTRON, and in consideration of the mutual agreements, 2. conditions, representations, warranties, recitals, covenants and statements of intention contained herein, RAMTRON hereby accept the above - referenced payment in full settlement, compromise and release of all claims as arising out of or in connection with the Lawsuit, pursuant to this Agreement, against CITY. 2. Contemporaneously with the execution ofthis Agreement, the counsel for the parties hereto will sign and enter and cause to be filed with the Court a Joint Motion for Dismissal With Prejudice and Agreed Order of Dismissal With Prejudice regarding all claims advanced in the Lawsuit. 3. Each Party agrees to be solely responsible for the payment of their respective attorney's fees, court costs, expert witness fees, court reporter's fees, and all other expenses incurred on said Party's behalf as a result of or in connection with the Lawsuit and/or this Agreement. 4. By entering into this agreement, the Parties agree that RAMTRON is not waiving any right it has under law to be paid, by the condemning authority, the full, fair market value for the land that previously was reserved for the future right of way for SH 45 and that the $130,000 to be paid to RAMTRON to settle this lawsuit is not to be applied as a setoff against the compensation ultimately to be paid by the condemning authority or authorities for the right of way in question. 5. It is agreed by the Parties that this settlement is contingent on the $130,000 being paid, in full, on or before Friday, March 8, 2002. IV. RELEASE OF CLAIMS 1. In consideration for the agreements of CITY, acting for and with the intention of binding itself and its respective heirs, legal representatives, executors, administrators, successors, assigns, receivers and trustees (including, without limitation, bankruptcy trustee) and all beneficiaries for whom CITY may be acting as trustee, hereby RELEASES, WAIVES, ACQUITS and FOREVER DISCHARGES RAMTRON, and its agents, servants, employees, officers, directors, shareholders, attorneys, successors, and assigns, past and present, from any and all Claims (as defined above), whether now known or not, which CITY now has, ever had, or ever may have against RAMTRON that arise out of RAMTRON's reservation of right of way or CITY 's approval of Ramtron's subdivision plan, except for any breaches of warranties, representation or obligations expressly set forth in this Agreement. 3. 2. In consideration of the agreements of RAMTRON, by RAMTRON, acting for and with the intention of binding itself and its legal representatives, executors, administrators, affiliates, successors, assigns, receivers and trustees, hereby RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES CITY and its respective heirs, legal representatives, agents, attorneys, successors and assigns, from any and all Claims (as defined above), which RAMTRON now has, ever had, or ever may have against CITY that arise out of of RAMTRON's reservation of right of way or CITY's approval of Ramtron's subdivision plan, except for any breaches of warranties, representations or obligations expressly set forth in this Agreement. 3. The Parties each stipulate and agree that they have relied upon their own judgment, belief and knowledge of the existence, nature and extent of each claim, demand or cause of action they may have against the other Party and/or any other party, and for each claim, demand or cause of action that is hereby released, and that they have not been influenced to any extent in entering into this Agreement by any representations or statement regarding any such claim, demand or cause of action made by any other party, except for the agreements, stipulations, representations and warranties expressly made herein. The Parties further acknowledge that none owes the others any fiduciary duty and that none has relied upon any other in a confidential or trust relationship in entering into this Agreement. Furthermore, the Parties acknowledge and agree that this Agreement is the product of arms - length negotiations. V. REPRESENTATIONS AND WARRANTIES 1. CITY hereby stipulates, represents and warrants to RAMTRON as follows: (a) That CITY is the current legal and beneficial owner of all claims released hereby and has not assigned, pledged or contracted to assign or pledge any such claim to any other person or entity; (b) That the terms and provisions of this Agreement are valid, binding and enforceable as against CITY; (c) That CITY is adequately represented by competent counsel and accountants of its own choosing in connection with the execution and delivery of this Agreement and in any and all matters relating thereto; (d) That CITY is not under any form of legal disability or incapacity at the time that they execute this Agreement; (e) That in executing this Agreement, CITY has relied upon its own judgment and the advice of its own attorneys, and further, that they have not been induced to sign or execute this Agreement by promises, agreements or representations not expressly stated herein, and they have 4. freely and willingly executed this Agreement and expressly disclaim reliance upon any facts, promises, undertakings or representations made by RAMTRON or its attorneys other than the express agreements, stipulations, representations and warranties contained herein; (0 That the consent of CITY to this Agreement was not procured, obtained or induced by improper conduct, undue influence or duress; (g) That after investigation and consultation with its attorneys, CITY agrees that this Agreement is fair, reasonable, and supported by good, valid, and adequate consideration. (h) That CITY has knowledge of all relevant and material information and facts and has been fully informed, including by advice of counsel, concerning the existence of potential claims against RAMTRON, including other additional affirmative or defensive claims arising from RAMTRON's reservation of right of way or CITY's approval of Ramtron's subdivision plan, in order to make an informed and considered decision to enter into this Agreement, and that it is CITY's' intention, based on the advice of counsel, and in exchange for the consideration recited herein, to fully and finally release all Claims that they have against RAMTRON or may have arising from RAMTRON's reservation of right of way or CITY's approval of Ramtron's subdivision plan; (i) That CITY shall maintain the confidentiality of this Agreement; provided, however, that CITY shall be authorized to make disclosures required by governmental agencies or pursuant to judicial process or to disclose the terms of the Agreement to its then current counsel; should CITY receive a subpoena or other document request to which this document would be responsive, notice shall be given to RAMTRON immediately and before compliance with the subpoena or other document request. G) (k) (1) That CITY is not in a significantly disparate bargaining position with RAMTRON; That CITY understands and agrees to the terms and conditions of this Agreement; That CITY understands and intends that RAMTRON rely upon these representations and warranties in entering into this Agreement; and (m) That CITY will not pursue any lawsuit against RAMTRON for any Claims arising out of the Lawsuit, except for any breaches of warranties, representations or obligations expressly set forth in this Agreement. 2. RAMTRON hereby represents and warrants to CITY as follows: (a) That RAMTRON is the current legal and beneficial owner of all claims released hereby and has not assigned, pledged or contracted to assign or pledge any such claim to any other person or entity; (b) That the terms and provisions of this Agreement are valid, binding and enforceable as against RAMTRON; (c) That RAMTRON is adequately represented by competent counsel and accountants of its own choosing in connection with the execution and delivery of this Agreement and in any and 5. all matters relating thereto; (d) That RAMTRON is not under any form of legal disability or incapacity at the time that it executes this Agreement; (e) That in executing this Agreement, RAMTRON has relied upon its own judgment and the advice of its own attorneys, and further, that it has not been induced to sign or execute this Agreement by promises, agreements or representations not expressly stated herein, and it has freely and willingly executed this Agreement and expressly disclaims reliance upon any facts, promises, undertakings or representations made by CITY or its attorneys other than the express agreements, stipulations, representations and warranties contained herein; (f) That the consent of RAMTRON to this Agreement was not procured, obtained, or induced by improper conduct, undue influence, or duress; (g) That after investigation and consultation with its attomeys, RAMTRON agrees that this Agreement is fair, reasonable, and supported by good, valid, and adequate consideration. (h) That RAMTRON has knowledge of all relevant and material information and facts and has been fully informed, including by advice of counsel, concerning the existence of potential claims against CITY, including other additional affirmative or defensive claims arising from of RAMTRON's reservation of right of way or CITY's approval of Ramtron's subdivision plan, in order to make an informed and considered decision to enter into this Agreement, and that it is its intention, based on the advice of counsel, and in exchange for the consideration recited herein, to fully and finally release all Claims that it has against CITY or may have arising from RAMTRON's reservation of right of way or CITY's approval of Ramtron's subdivision plan; (i) That RAMTRON shall maintain the confidentiality of this Agreement; provided, however, that RAMTRON shall be authorized to make disclosures required by governmental agencies or pursuant to judicial process or to disclose the terms of the Agreement to its then current counsel; should RAMTRON receive a subpoena or other document request to which this document would be responsive, notice shall be given to CITY immediately and before compliance with the subpoena or other document request. (j) That RAMTRON is not in a significantly disparate bargaining position with CITY; (k) That RAMTRON understands and agrees to the terms and conditions of this Agreement; (1) That RAMTRON understands and intends that CITY relyupon these representations and warranties in entering into this Agreement; and (m) That RAMTRON will not pursue any lawsuit against CITY for any Claims arising out of the Lawsuit, except for any breaches of warranties, representations, or obligations expressly set forth in this Agreement. 6. IV. MISCELLANEOUS PROVISIONS 1. Parties Bound. This Agreement shall be binding upon and shall inure to the benefit of all the Parties and their respective heirs, directors, officers, shareholders, executors, administrators, personal representatives, successors and assigns. 2. No Oral Modification. No amendment to, modification or waiver, or consent with respect to, any provision of any of this Agreement shall be effective unless the same shall be in writing and signed by the Party against whom enforcement of the amendment, modification, waiver or consent is sought. 3. Multiple Originals. This Agreement may be executed in any number of multiple originals by different Parties hereto, each of which shall be deemed to be an original and all of which when taken together shall constitute one or more of the same instruments. 4. Choice of Law. This Agreement shall be governed pursuant to the laws of the State of Texas. 5. Choice of Venue. Williamson County, Texas shall be the appropriate and ex clusive venue for any suit arising out of this Agreement. 6. Headings. The paragraph headings and sub - headings used herein are for descriptive purposes only. These headings have no substantive meaning and the terms of this Agreement shall not be affected by such headings. 7. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS. OR SUBSEOUENT ORAL AGREEMENTS AMONG THE PARTIES. AGREED TO AND ACCEPTED AS TO FORM AND CONTENT THIS DAY OF MARCH, 2002, BY: 7. STATE OF TEXAS § COUNTY OF WILLIAMSON § RAMTRON, INC. By: Its: CITY OF ROUND ROCK By: Robert Stluka Its: Mayor BEFORE ME, on this day personally appeared Robert Stluka, Mayor of the CITY OF ROUND ROCK personally known to me to be the person whose name is subscribed to the foregoing Agreement. According to the affiant's statements under oath, affiant acknowledged to me that he executed the Agreement for the purposes, agreements, and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the _ day of , 2002. Notary Public, State of Texas 8. STATE OF TEXAS § COUNTY OF WILLIAMSON § BEFORE ME, on this day personally appeared acting as ofRAMTRON, INC., (RAMTRON) personally known to me to be the person whose name is subscribed to the foregoing Agreement. According to the affiant's statements under oath, affiant acknowledged to me that he executed the Agreement for the purposes, agreements, and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the _ day of _ , 2002. Notary Public, State of Texas 9.