Loading...
CM-10-08-153ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY. Item Caption: City Manager Approval Summary Sheet Consider executing Cancellation of Contract and Release of Earnest Money and Full and Final Settlement and Release Agreements regarding the 615 E. Palm Valley Campus Project. Approval Date: August 6, 2010 Department: Legal Project Manager: Steve Sheets Item Summary: This Settlement Agreement splits the $10,000 between the City ($6,000) and DBRA Athens Property ($4,000). Strategic Plan Relevance: 20.0 Build and maintain the facilities needed to make the City attractive to businesses. Cost: N/A Source of Funds: N/A REV. 6/10/10 FULL AND FINAL SETTLEMENT AND RELEASE AGREEMENT A. CONTRACTUAL RECITALS AND STATEMENT OF PURPOSE WHEREAS, the City of Round Rock, Texas (hereinafter "the City") as Seller and DBRA Athens Property Investments, L.P. (hereinafter "DBRA") as Buyer, entered into a Sales/Purchase Agreement dated January 14, 2010, for the sale/purchase of Lot 9A of Heritage Center Subdivision, a subdivision in Williamson County, Texas, same being 615 E. Palm Valley Boulevard, Round Rock, Texas (hereinafter "contract"); and, WHEREAS, a dispute arose over the termination of the contract by DBRA and whether or not such termination was authorized under the terms of said contract; and WHEREAS, the City and DBRA have agreed to settle their differences and cancel the contract and direct the Texas American Title Company, escrow agent, to distribute to the City and DBRA's earnest money so that the City receives $6,000.00 and DBRA receives $4,000.00; and WHEREAS, this Settlement 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 the City or DBRA, all such claims having been expressly denied heretofore, and the parties continue to deny the same; and WHEREAS, all provisions of this Settlement Agreement and Mutual Release are contractual in nature; and WHEREAS, the purpose of this Settlement Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. 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: B. PERSONS AND ENTITIES BOUND BY THIS SETTLEMENT AGREEMENT 1. The City understands and agrees that by execution hereof, the terms of this Settlement Agreement are binding upon the City and upon all representatives, successors and assigns of City. 2. DBRA understands and agrees that by execution hereof, the terms of this Settlement Agreement are binding upon DBRA and upon all representatives, successors and assigns of DBRA. 3. The City represents and warrants that it has duly approved of all of the terms, conditions and covenants of this Settlement Agreement as evidenced by the duly authorized signature to this Settlement Agreement. 4. DBRA represents and warrants that it has approved of all of the terms, conditions and covenants of this Settlement Agreement as evidenced by the duly authorized signature to this Settlement Agreement. 1 CM-10-�-isa C. NO OUTSTANDING CLAIMS 1. The City warrants and represents that it has no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by the City, which is not subject to and fully released by this Settlement Agreement that concerns or relates in any way, directly or indirectly, to the contract. 2. The City warrants and represents that it has not assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any kind or character, which the City had or may have had prior to and including the Effective Date against DBRA. The City neither has nor owns any part of any actual or potential claims, demands, suits, causes of action, charges, or grievances of any kind or character against DBRA which are not subject to and released by this Settlement Agreement. 3. DBRA warrants and represents that it has no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by DBRA, which is not subject to and fully released by this Settlement Agreement that concerns or relates in any way, directly or indirectly, to the contract. 2. DBRA warrants and represents that it has not assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any kind or character, which DBRA had or may have had prior to and including the Effective Date against the City. DBRA neither has nor owns any part of any actual or potential claims, demands, suits, causes of action, charges, or grievances of any kind or character against the City which are not subject to and released by this Settlement Agreement. D. CONSIDERATION 1. In consideration of DBRA's execution of the Cancellation of Contract and Release of Earnest Money, a copy of which is attached hereto as Exhibit A, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, the City hereby accepts such Cancellation of Contract and Release of Earnest Money in full settlement, compromise and release of all claims as arising out of or in connection with the contract, pursuant to this Settlement Agreement, against DBRA, and DBRA hereby accepts the City's Cancellation of Contract and Release of Earnest Money in full settlement, compromise and release of all claims arising out of or in connection with the contract, pursuant to this Settlement Agreement, against the City. 2. 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 contract and/or this Settlement Agreement. 2 E. MUTUAL RELEASE The City and DBRA hereby covenant, agree and consent to the following: 1. The intent of the parties hereto is that each entity executing this Settlement Agreement shall, by reason of such execution, be entirely free of any and all actual or potential claims, suits, demands, causes of action, charges or grievances of any kind or character, regardless of the nature or extent of the same, arising out of the contract. 2. The City hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES DBRA and any of DBRA's representatives, and the City further covenants not to assert in any manner against any of such persons or entities released hereby, any and all actual or potential claims held by the City against DBRA and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, and in any manner (whether directly or indirectly) arising from or related to the contract. 3. DBRA hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES the City and any of the City's representatives, and DBRA further covenants not to assert in any manner against any of such persons or entities released hereby, any and all actual or potential claims held by DBRA against the City and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, and in any manner (whether directly or indirectly) arising from or related to the contract. F. INUREMENT It is understood and agreed that this Settlement Agreement shall inure to the benefit of the City and/or the representatives of the City and DBRA and/or its representatives. No other person or entity is intended to benefit by or be deemed a third -party beneficiary of this Settlement Agreement. G. EXPRESS DENIAL OF LIABILITIES The City and DBRA and/or their representatives, understand and agree that no payment made nor released pursuant to the terms of the Settlement Agreement, or other consideration given shall be intended to be, nor shall be construed to be, an admission of liability and any and all such liability is expressly denied. H. SEVERABILITY If any one or more of the provisions of this Settlement Agreement, or the application of any such provision to any person, entity, or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent at any time, the remainder of this Settlement Agreement, 3 and the application of such provision to persons, entities, or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be enforceable to the fullest extent permitted by law. Any invalid, unlawful, or unenforceable provision hereof shall be reformed to the extent necessary to render it valid, lawful, and enforceable in a manner consistent with the intentions of the parties hereto regarding such provision. I. ENTIRE AGREEMENT OF THE PARTIES This Settlement Agreement and Exhibit A constitutes the entire agreement and understanding of the City and DBRA and/or representatives, with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and understandings related to the subject matter hereof, including but not limited to, the contract. No representations, warranties, recitals, covenants, or statements of intention have been made by, or on behalf of, any party hereto which is not embodied in this Settlement Agreement and Exhibit A or in connection with the transactions contemplated hereby, and no party hereto shall be bound by, or liable for, any alleged representation, warranty, recital, covenant, or statement of intention not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals, and statements of intention in this Settlement Agreement shall be binding upon, inure to the benefit of, and be enforceable by the City and DBRA and/or their representatives. J. GOVERNING LAW This Settlement Agreement shall be construed in accordance with the governing laws of the State of Texas. The obligations of the parties are performable, and venue for any legal action arising out of this Settlement Agreement shall lie in Williamson County, Texas. K. FULL UNDERSTANDING AND AGREEMENT EACH RELEASING PERSON, ENTITY, OR PARTY WARRANTS THAT SUCH PARTY HAS READ THIS FULL AND FINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE (INCLUDING EXHIBITS) AND FULLY UNDERSTANDS IT. EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO EXECUTE THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE, AND THAT SUCH PARTY HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY REPRESENTATION OF ANY KIND OR CHARACTER NOT EXPRESSLY SET FORTH HEREIN. 4 L. EXECUTION AND EFFECTIVE DATE This Settlement Agreement may be signed in counterparts, and each counterpart shall constitute an original. The parties hereto have executed this Full and Final Settlement Agreement and Mutual Release on the dates set forth opposite their names, to be effective as of Q1J3,WTvl (p , 2010. CITY OF ROUND ROCK, TEXAS R.\lt.5e.., P E. , i\ bates re, On this (04' day of 034 , 2 p , before me, the undersigned notary public, personally appeare e 'W'-?.. I J yt e I I , 61* -1 Mp yi#t of then City of Round Rock, Texas, known to me to be the person whose ndne is subs 'bed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained. 924/144.. v&vto Notary Public, State of Texas DBRA ATHENS PROPERTY INVESTMENTS, L.P. On this day of , , before me, the undersigned notary public, personally appeared , of DBRA Athens Property Investments, L.P., known to me to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained. Vie4st Ste khc4J .A7ost /t.Eti,✓k,lj w,.. 1 - Notary Notary Public, State of California c.,Aia 07/i7/iv 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT �. A��i: .tin.•. ALi. Ai4\q �A J.�YA9i.�h�% I..�i . A�r/.•A.'A•�i X •� )"A•? ��+Y��M1�O. .��f.�i `itt.n. h•� w.i1�AT..�6 �YI.•A� �i A�. w. State of California County of Loo Alj-e-ter On J"1y 17'6 ?Ddo Date personally appeared before me, ®D -O 14/ G✓l /JtMi•+ 8oWA, alot } M c h 4 / e//. r, 449'4 r7 P✓4% c Here Insert Name and Title of the Officer NamelLof Signer z z WILLIAM MICHAEL BALLAS Commission # 1818522 Notary Public - California Los Angeles County My Comm. Expires Oct 19, 2012 Place Notary Seal Above z z who proved to me on the basis of satisfactory evidence to be the personN whose nameN is/acre subscribed to the within instrument and acknowledged to me that Oie/she/they executed the same in litis/her/tlieir authorized capacitylries), and that by his/her/tgetr signatureson the instrument the person's),, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature OPTIONAL Signature of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document t�L( 1 AA Fd/ o,i L 7.rnq/ 1 Sa-14 e # a.J Re1-e(se Ajte,tr^-L N4- 1t Document Date: �%✓ /j' /7 ? eI 0 �J Title or Type of Document: Signer(s) Other Than Named Above: y/4 - Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name: Ooro14r Individual Corporate Officer — Title(s): ❑ Partner — C Limited ❑i General Attorney in Fact IL Trustee Guardian or Conservator X Other: 414P4.5 ;•..1 Ater.5ev Of MA. GP Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Sig - 's Name: ❑ Indivl...I Corporate ' icer — Title(s): ❑ Partner — ❑ L -''ted LI General ❑ Attorney in Fact ❑ Trustee Guardian or Conservator Cl Other: Signer Is Representing: ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1-800-876-6827 EXHIBIT A CANCELLATION OF CONTRACT AND RELEASE OF EARNEST MONEY File No: 9691-08-1239 Escrow Agent: Texas American Title Company Regarding Contract of Sale described as follows: Dated: Seller: City of Round Rock Purchaser: DBRA Athens Property Investments L.P. or Assigns Earnest Money: $ 10,000.00 Property: 615 East Palm Valley Boulevard Round Rock, TX Lot 9A, Repiat of Lot 9 of the Heritage Center Subdivision, a subdivision in Williamson County, Texas; according to the map and or plat thereof, recorded in Cabinet GG, Slides 27-28, of the Plat Records of Williamson County, Texas. Seller and Purchaser agree that said Contract on above named property is no longer valid . We acknowledge the earnest money contract is null and void as of this date and of no further force and effect. We direct the Escrow Agent to disburse the held earnest money in the amount of $ 10,000.00as follows: Amount of Money Disbursed To: $6,000.00 City of Round Rock $4,000.00 DBRA Athens Property Investments LP $ $ Seller and Purchaser agree to hold Escrow Agent and its underwriter, Broker and Agents harmless from any further claims, rights, titles, interests, including but not limited to court costs and attorney fees, or any other obligations under said Contract of Sale. Seller and Purchaser hereby release one another from any further obligations under said Contract of Sale SELLER(S): City of Round Rock Date: PURCHASER(S): Athoperty Investments LP .610 -lit to tc, Date: ROUND ROCK, TEXAS PURPOSE. PASSION. PROSPERITY Item Caption: City Manager Approval Summary Sheet Consider executing Cancellation of Contract and Release of Earnest Money and Full and Final Settlement and Release Agreements regarding the 615 E. Palm Valley Campus Project. Approval Date: August 6, 2010 Department: Legal Project Manager: Steve Sheets Item Summary: This Settlement Agreement splits the $10,000 between the City ($6,000) and DBRA Athens Property ($4,000). Strategic Plan Relevance: 20.0 Build and maintain the facilities needed to make the City attractive to businesses. Cost: N/A Source of Funds: N/A REV. 6/10/10