R-96-10-10-14G - 10/10/1996WHEREAS, the City of Round Rock ( "City ") is the plaintiff in
Cause No. 95 316 - C277; City of Round Rock, Texas vs. Shell Oil
Company d /b /a Shell Chemical Company, and Vanguard Plastics, Inc.,
and
TEXAS,
RESOLUTION NO. R- 96- 10- 10 -14G
WHEREAS, Shell Oil Company has offered to settle the lawsuit
on terms acceptable to the City, and
WHEREAS, the City Council wishes to authorize the Mayor to
execute a settlement agreement with Shell Oil Company, et al, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a settlement agreement in Cause No. 95 316 - C277;
City of Round Rock, Texas vs. Shell Oil Company d /b /a Shell
Chemical Company, and Vanguard Plastics, Inc.,.
RESOLVED this 10th day of October, 1996.
ATTEST:
&:\ WP OOCS\RESOLUTI \R561010C.HP0 /BCg
LAND, City Secretary
Enc.
/smw
Mr. Stephan Sheets
309 E. Main Street
Round Rock, Texas 78664
Montgomery & Associates
A Professional Corporation
Attorneys & Counselors at Law
613 N. W. Loop 410, Suite 620
San Antonio, Texas 78216
(210) 349-6469
Fax: (210) 349 -0069
December 2, 1996
Re: City of Round Rock, Texas vs. Shell Oil Company, et al.
Dear Mr. Sheets:
Enclosed for your records, please find a copy of the fully executed Settlement Agreement and
Release as it pertains to the above matter.
Sincerely,
Michelle Wetterau
Legal Secretary
12 -04 -1996 RCVD
SETTLEMENT AGREEMENT AND RELEASE
THE CITY OF ROUND ROCK
This Settlement Agreement and Release (Agreement) is entered into as of the to day of
�vf l��Gv , 1996, between City of Round Rock (Releasor), Shell Oil Company
(Shell) and Vanguard Plastics, Inc, (Vanguard).
RECITALS
A. Releasor is a water distribution company which owns a polybutylene potable water
distribution system located in the City of Round Rock, Texas. The polybutylene potable
water distribution system is comprised, in part, of polybutylene pipe made from Shell
polybutylene resin which runs from the main to the meters (the Distribution System).
Releasor alleges certain claims against Shell and Vanguard arising in whole or in part from
leaks in the Distribution System in Round Rock (Claims).
B. Releasor, Shell and Vanguard (the Parties) have entered into this Agreement in good
faith, with the desire to forever settle between and among the Releasor, Shell and
Vanguard any and all past, present and future disputes, Claims or rights in any way arising
from the Distribution System and Claims therefrom. The Parties acknowledge and agree
that liability in connection with the Claims is disputed, and agree that this Agreement is not
to be construed as an admission of liability, but rather as a compromise of those disputed
Claims.
C. By entering into this Agreement, the Parties fully and completely settle and dispose
of all Claims, demands, actions, causes of action and rights of any kind existing between
and among the Releasor, Shell and Vanguard regarding this Distribution System.
Now, therefore, in consideration of the mutual covenants and promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Payment.
AGREEMENT
Shell and Vanguard shall pay to Releasor within 30 days of execution of this
Agreement the sum of $7,650,000.00, which represents payment which shall be made to
Releasor by Shell and Vanguard for all Claims which shall include but not be limited to
costs of replacement and for damages asserted by Releasor against Shell and Vanguard
and to Releasor's attorneys, Montgomery & Associates, for attorneys' fees and expenses.
2. Release,
(a) Releasor, on behalf of itself and its heirs, successors, assigns, their current and
former affiliates, subsidiaries, divisions and related business entities, agents, employees,
shareholders, partners, officers, directors, attorneys, insurers and representatives of any
kind whatsoever, hereby RELEASES, ACQUITS and FOREVER DISCHARGES Shell and
Vanguard, their past, present and future affiliates, parent companies, subsidiaries, divisions
and related business entities, agents, employees, shareholders, partners, officers,
directors, successors, assigns, attorneys, insurers and representatives of any kind
whatsoever (Released Parties), of and from any and all Claims, demands, damages,
actions, causes of action, debts, costs, loss of services, expenses, compensation, liabilities
or controversies of any kind whatsoever, whether known or unknown, latent, patent, non-
existent at the present time and which may arise in the future or are unanticipated at this
time which Releasor, or Releasor's heirs, predecessors, successors or assigns have had,
now have, or may have against the Released Parties, arising out of, resulting from, or in
any way connected with the Claims, which shall include, but not be limited to, Claims
arising from any alleged act, omission, fraud, misrepresentation, non - disclosure, breach
of warranty (express or implied), breach of contract (express or implied), negligence, gross
negligence, reckless or intentional conduct or any obligations allegedly incurred in
connection with the materials (including pipe, fittings and any other components),
development, design, testing, formulation, compounding, manufacture, storing, shipping,
promotion or advertising for sale and /or use, disclosure, installation, construction,
financing, sale, or repair of the Distribution System and tools and components used in the
installation thereof. It is UNDERSTOOD and AGREED that this is a FULL and FINAL
RELEASE made to FULLY and FINALLY COMPROMISE any and all Claims of every
nature and kind whatsoever, of Releasor against the Released Parties in connection with
or relating to or located on the Distribution System and of all claims for any plumbing
system that may be installed as its replacement.
(b) The releases provided in subparagraph (a) of this Paragraph 2 include, without
limitation: (i) damage to the Distribution System, including the unimproved land, structure
and improvements, (ii) damage to personal property, (iii) personal or bodily injury, including
emotional distress, and (iv) economic loss, regardless of whether the Claims, demands,
causes or action, damages or liabilities, etc. were already raised or could be raised in the
future by Releasor.
(c) The covenants and promises contained herein shall run with the land and shall be
binding upon any subsequent purchasers, agents, successors or assigns of Releasor.
(d) Releasor acknowledges and agrees that it shall assume all risks that, subsequent to
the execution of this Agreement, Releasor may suffer further damages related to the
Claims which are unknown or unanticipated at the time this Agreement is executed. In
addition, Releasor agrees that it shall assume the risk that the damage presently known
may become more serious than Releasor now expects or anticipates.
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(e) Releasor fully understands that the facts presently known to it may later be found to
be different, and expressly accepts and assumes the risk that the facts may be found to
be different. This Agreement, and the releases contained herein, shall be effective in all
respects and shall not be subject to termination or rescission because of any such
difference in facts.
3. Covenant Not to Sue /Indemnity
Releasor, on behalf of itself and its heirs, successors, assigns, their current and
former affiliates, subsidiaries, divisions and related business entities, agents, and
employees, shareholders, partners, officers, directors, attorneys, insurers and
representatives of any kind whatsoever, covenants and agrees to forever refrain from
instituting, prosecuting, maintaining, or assisting with any claim, lawsuit, proceeding,
demands, damages, actions, causes of action, debts, costs, loss of services, expenses,
compensation, liabilities of or controversies of any kind whatsoever, whether known or
unknown, latent, patent, nonexistent at the present time, and which may arise in the future
or are unanticipated at this time against the Released Parties, or any other entity, which
arise out of the alleged defects in the polybutylene potable water distribution system or any
component thereof, except to enforce this agreement. Releasor further agrees to fully and
completely defend, indemnify, and hold harmless to the extent allowed at law the Released
Parties from and against any further liability, damages, costs, expenses or financial
responsibility of any kind or nature, claims, actions, causes of action, debts, loss of
services, compensation, liabilities or controversies of any kind whatsoever, whether known
or unknown, latent, patent, nonexistent at the present time and which may arise in the
future or are unanticipated at this time related to the materials (including pipe, fittings and
any other components), development, design, testing, formulation, compounding,
manufacturing, storing, shopping, promotion or advertising for sale and/or use, disclosure,
installation, construction, financing, sale or repair of the Distribution System and tools and
components used in the installation thereof, and any component actually installed in the
Distribution System, as a result of any further claim, except to enforce this Agreement.
Releasor specifically acknowledges that the foregoing encompasses its agreement to fully
and completely indemnify, hold harmless and defend the Released Parties from and
against any and all claims for contribution, subrogation, and /or indemnity as a result of
claims that have been or may have been asserted by third parties against the Released
Parties as a result of these claims or in any other suit.
4. Sale and Assignment of Claims to the Released Parties.
To the extent not released above, Releasor agrees to and does hereby sell and
assign to the Released Parties all of the Releasor's right, title and interest in and to any
and all Claims, actions or causes of action of any kind or nature that Releasor has or in the
future may have that in any way relate to the Distribution System installed in the structures
located on the Property and /or the Claims, against any person or entity, including plumbing
contractors, builders and /or developers and the parents, successors, assigns, affiliates and
-3-
insurance carriers of any and all of said named and unnamed entities and persons; except
for Releasor's insurance carrier for damages not covered under this Agreement.
5. Dismissal of Litigation
Upon full execution of the Agreement, the Parties will immediately sign the Joint
Motion to Dismiss and the Agreed Order of Dismissal with Prejudice (attached as Exhibit
"A ") and take all steps necessary to cause the litigation in this matter to be dismissed, with
prejudice, by the Court.
6. Good Faith
The Parties to this Agreement agree and acknowledge that all negotiations by them
and their representatives in connection with the settled Claims have been conducted in
complete good faith. This settlement has been achieved between the Parties without
evidence of bad faith, collusion, unfair practices or tortious conduct of any kind which is
injurious to the interest of the Parties or of non - settling individuals or entities.
7. Construction.
This Agreement is the product of a collaboration between Releasor and Released
Parties. No provision of this Agreement shall be construed against any party by virtue of
the involvement of that party or its attorneys in drafting this Agreement.
8. Entire Agreement - No Oral Modifications.
This Agreement constitutes the entire integrated agreement between and among
Releasor and Released Parties and fully supersedes any and all prior understandings,
representations, warranties or agreements pertaining to the subject matter of this
Agreement. No oral agreements, understandings or representations shall change, modify
or amend any part of this Agreement. This Agreement may be modified only by a written
agreement fully executed by Releasor and Released Parties. '
9. Binding Effect,
The terms of this Agreement shall be binding upon, and shall inure to the benefit of
Releasor and Released Parties, to include any successors and assigns.
10. Independent Legal Advice,
Releasor and Released Parties acknowledge that they have carefully read this entire
Agreement; that they have reviewed this Agreement with their attorneys; that they have full
understanding of its contents and the effects thereof; and that they have executed the
Agreement of their own free will, without any coercion by anyone, either party or nonparty,
to this Agreement.
-4-
11. Necessary Acts,
Releasor and Released Parties agree to perform any and all acts and execute any
and all documents which may be reasonably necessary to fully carry out the provisions and
intent of this Agreement.
12. Attorney's Fees
Should any litigation or arbitration be commenced between and among Releasor and
Released Parties, concerning any provision of this Agreement or the rights and obligations
of any party in relation thereto, or to enforce this Agreement, the prevailing party in such
litigation or arbitration shall be entitled, in addition to such other relief as may be granted,
to reasonable attorneys' fees which, if not agreed to by the Parties hereto, shall be
determined in the same action.
13. Authority.
Releasor represents and warrants that as of the date of the execution of this
Agreement, Releasor is the governing body of the owners of the Distribution System,
(I) has the right and authority to execute this Agreement, in all respects, on behalf of all
persons with vested or contingent ownership interests in the Distribution System at the time
of signing, and (ii) has not sold, assigned, transferred, conveyed or otherwise disposed of
any claim or demand relating to any right surrendered by virtue of this Agreement.
Releasor agrees to indemnify, hold harmless and defend Released Parties for any breach
of this provision.
14. Choice of Law,.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Texas. If any provision of this Agreement or any provision hereafter adopted
shall for any reason be found to be inapplicable, invalid, illegal, or unenforceable in any
respect, such inapplicability, invalidity, illegality, or unenforceability shall not affect any
other provision of this Agreement, but the Agreement shall be construed as if such
provision had never been contained herein or, in the alternative, such provision shall be
modified to the extent of such inapplicability, invalidity, illegality, or other unenforceability.
In Witness Whereof, the City of Round Rock, Shell Oil Company and Vanguard Plastics,
Inc. have executed this Agreement as of the day and year first written above.
- 6 -
THE CI OF ROUND ROCK, TEXAS
By: i 1 ""7''"1 �'"
Its:
/
SHELL OIL COMPANY
Its: D it ex-by Spec-4 f're.i t,.t
VANGUARD PLASTICS, INC.
By: vVI/ //aH+ 11, /Yu' 1d
Its: 6ei'iem/ COunse/
CITY OF ROUND ROCK,
TEXAS
vs.
SHELL OIL COMPANY D /B /A
SHELL CHEMICAL COMPANY,
AND VANGUARD PLASTICS, INC.
CAUSE NO. 95-316-C277
§
§
§
§
§
§
§
§
IN THE DISTRICT COURT
WILLIAMSON COUNTY, TEXAS
277TH JUDICIAL DISTRICT
JOINT MOTION TO DISMISS WITH PREJUDICE
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW the Plaintiff City of Round Rock, Texas ("Plaintiff'), and Defendants Shell
Oil Company d/b /a Shell Chemical Company and Vanguard Plastics, Inc., ( "Defendants "), by and
• through their attorneys of record, and the parties having compromised and settled all matters in
dispute between them, Plaintiff having reached a settlement with Defendants, the parties jointly
move the Court to have all claims asserted by Plaintiff against Defendants dismissed with
prejudice.
WHEREFORE, the parties move the Court to order that all claims asserted by Plaintiff City
of Round Rock, Texas against Defendant Shell Oil Company d/b /a Shell Chemical Company and
Vanguard Plastics, Inc., be dismissed with prejudice.
EXHIBIT giNu
Respectfully submitted,
MONTGOMERY & ASSOCIATES
James E. Montgomery
TBA No. 14292200
613 N.W. Loop 410, Suite 620
San Antonio, Texas 78216
(210) 349 -6469
(210) 349 -0069 (FAX)
ATTORNEY FOR PLAINTIFF
CITY OF ROUND ROCK, TEXAS
VINSON & ELKINS L.L.P.
Daniel A. Hyde
TBA # 10368000
2500 First City Tower
1001 Fannin
Houston, Texas 77002 -6760
713/758 -2222
713/758 -2346 (FAX)
Kim E. Brightwell
TBA # 02992700
Beverly G. Reeves
TBA # 16716500
2700 One American Center
600 Congress Avenue
Austin, TX 78701 -3200
512/495 -8500
512/495 -8612 (FAX)
ATTORNEYS FOR DEFENDANT
SHELL OIL COMPANY d /b /a SHELL
CHEMICAL COMPANY
TUCKER, HENDRYX, SNYDER & SLADE
James L. Doyle
TBA # 06094450
8 East Greenway Plaza, Suite 1200
Houston, Texas 77046 -0889
713/961 -5800
713/993 -2308 (FAX)
ATTORNEYS FOR DEFENDANT
VANGUARD PLASTICS, INC.
CERTIFICATE OF SERVICF
I hereby certify that a copy of JOINT MOTION TO DISMISS WITH PREJUDICE AND
ORDER has been sent via certified mail to the following on the _ day of October 1996 in
compliance with Texas Rules of Civil Procedure 21 and 21a.
James E. Montgomery
Montgomery & Associates
613 N.W. Loop 410, Suite 620
San Antonio, Texas 78216
James L. Doyle
Tucker, Hendryx, Snyder & Slade
8 East Greenway Plaza, Suite 1200
Houston, Texas 77046 -0889
Beverly G. Reeves
CITY OF ROUND ROCK,
TEXAS
vs.
SHELL OIL COMPANY D /B /A
SHELL CHEMICAL COMPANY,
AND VANGUARD PLASTICS, INC.
CAUSE NO. 95- 316 -C277
AGREED ORDER
IN THE DISTRICT COURT
WILLIAMSON COUNTY, TEXAS
277TH JUDICIAL DISTRICT
On this day came on to be heard the Joint Motion to Dismiss With Prejudice. Plaintiff City
of Round Rock, Texas and Defendants Shell Oil Company d/b /a Shell Chemical Company and
Vanguard Plastics, Inc., appeared by and through their attorneys of record, and after hearing
arguments of counsel, the Court is of the opinion that such motion should be GRANTED. It is
therefore
ORDERED, that this Motion be granted and that all claims asserted by Plaintiff City of
Round Rock, Texas against Defendants Shell Oil Company d /b /a Shell Chemical Company and
Vanguard Plastics, Inc. be dismissed with prejudice. All costs shall be borne by party incurring
same. All relief not expressly granted herein is hereby denied.
SIGNED this day of 1996.
JUDGE PRESIDING
AGREED TO BY:
MONTGOMERY & ASSOCIATES
James E. Montgomery
TBA No. 14292200
613 N.W. Loop 410, Suite 620
San Antonio, Texas 78216
(210) 349 -6469
(210) 349 -0069 (FAX)
ATTORNEY FOR PLAINTIFF
CITY OF ROUND ROCK, TEXAS
VINSON & ELKINS L.L.P.
Daniel A. Hyde
TBA # 10368000
2500 First City Tower
1001 Fannin
Houston, Texas 77002 -6760
713/758 -2222
713/758 -2346 (FAX)
Kim E. Brightwell
TBA # 02992700
Beverly G. Reeves
TBA # 16716500
2700 One American Center
600 Congress Avenue
Austin, TX 78701 -3200
512/495 -8500
512/495 -8612 (FAX)
ATTORNEYS FOR DEFENDANT
SHELL OIL COMPANY d /b /a SHELL
CHEMICAL COMPANY
-2-
TUCKER, HENDRYX, SNYDER & SLADE
James L. Doyle
TBA # 06094450
8 East Greenway Plaza, Suite 1200
Houston, Texas 77046 -0889
713/961 -5800
713/993 -2308 (FAX)
ATTORNEYS FOR DEFENDANT
VANGUARD PLASTICS, INC.
DATE: October 8, 1996
SUBJECT: City Council Meeting, October 10, 1996
ITEM: 14.G Consider a resolution authorizing the
Mayor to execute a settlement agreement
regarding the City of Round Rock vs.
Shell Oil Company, et aI lawsuit.
STAFF RESOURCE PERSON: Jim Nuse and Steve Sheets
STAFF RECOMMENDATION: Approval of the resolution
During a mediation session held on October 4, 1996, Shell Oil
Company made an offer to settle the lawsuit. The offer will be
discussed with the City Council in executive session. A
presentation will be made at the meeting.
C.\ NPDDCS \ACITY \BIABSHEB \ES1010G.wPD /,1B