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R-2015-2639 - 7/9/2015 RESOLUTION NO. R-2015-2639 WHEREAS, the City of Round Rock ("City") entered into a contract with Westar Construction, Inc. ("Westar") for the Oxford Boulevard Culvert Replacement Project ("Project"); and WHEREAS, certain issues arose among the Parties concerning the contract between the Parties pertaining to the Project; and WHEREAS, the City and Westar have expressed a willingness to settle these issues for the amount of$155,000.00; and WHEREAS, the City and Westar desire to enter into a Settlement Agreement and Release to resolve any issues,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 Settlement Agreement and Release with Westar Construction, Inc., a copy of same being attached hereto as Exhibit"A" and incorporated herein for all purposes. 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 25th day of June, 2015. am ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk 0112.1504;00337465 EXHIBIT «A» SETTLEMENT AGREEMENT AND RELEASE This will confirm the agreement ("Agreement") of THE CITY OF ROUND ROCK ("City") and WESTAR CONSTRUCTION, INC. ("Westar"). City and Westar may be individually referred to as a "Party"and collectively as"the Parties." This agreement is effective June 29, 2015 ("Effective Date"). Recitals. Certain issues arose among the Parties concerning the contract between the Parties pertaining to the Oxford Boulevard Culvert Replacement Project ("Project"). In order to resolve any issues, and for good and valuable consideration, including the covenants below, and without any admission of fault, the Parties agree as follows: 1. Payment. City agrees to pay Westar One Hundred Fifty Five Thousand Dollars and No Cents ($155,000.00)by check payable to Armbrust &Brown,PLLC,Trustee. 2. Release. Effective upon the execution of this Agreement, City and Westar, individually and for any principals, agents or affiliates, release, acquit and forever discharge one another and any of an opposing party's officers, members, council members, staff, agents, representatives, heirs, beneficiaries, successors, assigns, affiliates, parent entities, attorneys, and insurers, of and from any and all liability, causes of action or actions, suits, claims, damages, obligations,judgments, levies and executions, at law or in equity, whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect, asserted or unasserted, which a party currently has, has ever had in the past, or may have in the future, and whether based in contract, tort, statute, common law, or otherwise, that arise in whole or in part, or are attributable to or in any way arise out of or are related to, whether directly or indirectly, the transaction made the basis of the Lawsuit and/or the Project. The Lawsuit will be dismissed with prejudice. 3. Effective Upon Execution. This Agreement becomes binding following its execution by the Parties. 4. Governing Law. This Agreement and the rights of the Parties hereunder are subject to and shall be interpreted in accordance with the laws of the State of Texas, without regard to principles of conflicts of law. 5. Execution in Counterparts/Facsimile. This Agreement may be executed in any number of counterparts with the same effect as if all Parties had signed the same document. All counterparts will be construed together and constitute one agreement. A facsimile or other electronic transmission of a Panty's signature page binds that Party with the same force and effect as if signed and delivered in original. 6. Binding Effect. Each and all of the covenants, teens, provisions and agreements contained herein are binding upon and inure to the benefit of the Parties, their respective heirs, assigns, successors and legal representatives. 7. Entire Agreement. This Agreement contains the entire agreement between the Parties. This Agreement supersedes any prior understandings or oral or written agreements between the Parties with respect to the subject matter of this Agreement. I 1 i (W0658854.11 I I S. Captions. Article or section titles or captions are inserted only as a matter of convenience and for reference and do not define, limit, extend, or describe the scope of this Agreement. 9. Interpretation. Each of the Parties have been represented by legal counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which Party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, concerning its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any Party. 10. Further Assurances. The Parties agree to execute such further documents or take such further action as is reasonably necessary to effectuate the intent of this Agreement and covenants set forth herein. 11. Authority to Settle. Each signatory represents and warrants that he or she has authority to execute this document. THE UNDERSIGNED HAVE READ THIS SETTLEMENT AGREEMENT AND AGREE TO ITS TERMS. 12. Non-Disparagement and Confidentiality. The Parties agree not to disparage one another. Nothing herein shall be construed as an admission of liability by any of the Parties, all such liability being expressly denied. The parties agree that the terns of this agreement are strictly confidential and shall not be disclosed except as necessary for professional advice. 13. Attorneys' Fees. The Parties agree that any attorneys' fees or costs incurred in connection with the disputes settled herein shall be paid by the party incurring same. In a suit to enforce this Agreement, the prevailing party shall be entitled to recover reasonable and necessary attorneys' fees. i C i i f W06ssss4.11 I i AGREED: CITY OF ROUND ROCK Date. By: STATE OF TEXAS COUNTY OF § Subscribed and sworn to before me, the undersigned authority, on this day duly appeared and executed the foregoing Partial Settlement Agreement and Release as their own free act on this day of 2015, to which witness my hand and official seal. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS WESTAR CONSTRUCTION, INC. Date: STATE OF TEXAS COUNTY OF '!i��, ' Subscribed and sworn to before me, the undersigned authority, on this day duly appeared Mark Wi(tamson and executed the foregoing Partial Settlement Agreement and Release as their own free act on this day of u 2015, to which witness my hand and official seal. NOTARY PU LIC IN AND FyR THE STATE OF TEXAS Le COREY MATTHEW PETTY Notary Public,state of Texas fW0658854.11 My Commission Expires March 10, 2019