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R-04-01-22-14E4 - 1/22/2004RESOLUTION NO. R-04-01-22-14134 WHEREAS, on August 10, 2000, the City of Round Rock ("City") entered into a contract with Austin Filter Systems, Inc. ("Austin Filter") for, the Dell Way, Gattis School Road Construction Project ("Project"), and WHEREAS, Austin Filter has submitted a claim to the City for additional. costs incurred as a result of unforeseen delays in the completion of the Project, and WHEREAS, the City and Austin Filter have expressed a willingness to settle this claim for the amount of $185,453.59, and WHEREAS, the City and Austin Filter desire to enter into a Settlement Agreement and Release in regards to this matter, 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 Austin Filter Systems, 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. @PFDESkt Opp:.ODMA/W0R1X0X/O:/WLk1X/RFSOLOTI/R40122DF.WPD/sc RESOLVED this 22nd day of January, 2004. MAXWELL, Aayor City of Round Rock, Texas 0 CHRISTINE R. MARTINEZ, City Secretary 2 SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT and RELEASE (the "Settlement Agreement") is entered into this day of , 2004, by and between City of Round Rock, a home -rule municipal corporation ("CORR"), and Austin Filter Systems, Inc. a Texas corporation ("AUSTIN FILTER"), hereinafter collectively referred to as ("Parties"). WITNESSETH: WHEREAS, on or about August 10, 2000, the Parties entered an Agreement (the "Agreement") wherein AUSTIN FILTER agreed to commence and complete the construction of certain improvements described as the Dell Way, Gattis School Road and Home Depot Bridge — Street & Drainage Construction (the "Project"); WHEREAS, the terms of the Agreement require that the Project be completed within two hundred forty (240) calendar days after the date of the written Notice -to -Proceed (the "Contract Period"); WHEREAS, on or about September 28, 2000, a written Notice -to -Proceed was issued by the CORR; WHEREAS, on or about April 1, 2003, a final walk through was conducted by the parties and preliminary acceptance was given by CORR and with a Certificate of Acceptance issued by the CORR on August 14, 2003; WHEREAS, the Contract Period was exceeded by Six Hundred Seventy-five (675) days of which Six Hundred Twenty-eight (628) days were due to time delays claimed to be caused by or on behalf of the CORR ("Delay Period"); WHEREAS, AUSTIN FILTER has made a claim to CORR for additional costs incurred and associated with the Delay Period ("Delay Claim"); and WHEREAS, the Parties have determined that it is in their respective interests to terminate all disputes and controversies existing between them relating to the Agreement and the Parties have negotiated and agreed to a settlement of all disputes and controversies between them relating to the Agreement; NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the adequacy and sufficiency of which are hereby acknowledged, and with the intent to be legally bound hereby, the parties hereto agree as follows: I. AGREEMENTS 1. In consideration of the total sum of One Hundred Eighty -Five Thousand Four Hundred Fifty-three and 59/100 Dollars ($185,453.59) paid by CORR to AUSTIN FILTER, the Page 1 of 7 EXHIBIT t a a "All receipt and sufficiency of which is hereby acknowledged by AUSTIN FILTER, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, AUSTIN FILTER hereby accepts the above -referenced payment in full settlement, compromise and release of all claims as arising out of or in connection with the Agreement against CORR. 2. Each Party agrees to be solely responsible for the payment of their respective attorney's fees and all other expenses incurred on said Party's behalf as a result of or in connection with the Settlement Agreement. II. RELEASE BY CLAIMANTS 1. Definition. As used in this Settlement Agreement, the term "Claims" shall mean and refer to any and all claims of any kind or character whatsoever in law or in equity, foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, including, without limitation, claims for usury, breach of contract, libel, slander, failure to provide goods and services, failure to act in a commercially reasonable manner, extra -contractual damages, violations of the Texas Deceptive Trade Practices act, violations of the Texas Business and Commerce Code, 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, dues, accounts, bonds, covenants, contracts, agreements, actions, cross -actions, rights of recovery, judgments, 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 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 penalties for usurious interest paid, taken, received, reserved, contracted for or demanded; damage to business reputation; lost profits or good will; consequential damages; damages ensuing from loss of credit; and pre judgment and post- judgment interest, costs and attorneys' fees. 2. In consideration for the agreements of CORR, acting for and with the intention of binding itself and its respective heirs, legal representatives, executors, administrators, successors, assigns, receivers and trustees and all beneficiaries for whom CORR may be acting as trustee, AUSTIN FILTER hereby RELEASES, WAIVES, ACQUITS and FOREVER DISCHARGES CORR, and its agents, servants, employees, officers, directors, shareholders, attorneys, successors, and assigns, past and present, from any and all Claims (as defined above), which AUSTIN FILTER now has, ever had, or ever may have against CORR that arise out of the Agreement or the Delay Claim, except for any breaches of warranties, representation or obligations expressly set forth in this Settlement Agreement or that are required by or survive the completion of the Project. Page 2 of 7 3. In consideration for the agreements of AUSTIN FILTER, acting for and with the intention of binding itself and its respective heirs, legal representatives, executors, administrators, successors, assigns, receivers and trustees and all beneficiaries for whom AUSTIN FILTER may be acting as trustee, CORR hereby RELEASES, WAIVES, ACQUITS and FOREVER DISCHARGES AUSTIN FILTER, and its agents, servants, employees, officers, directors, shareholders, attorneys, successors, and assigns, past and present, from any and all Claims (as defined above), which CORR now has, ever had, or ever may have against AUSTIN FILTER that arise out of the Agreement or the Delay Claim, except for any breaches of warranties, representation or obligations expressly set forth in this Settlement Agreement or that are required by or survive the completion of the Project. 4. The Parties acknowledge that this Settlement Agreement is being offered as a settlement of a Claim and is not an admission by the Parties of liability or of any other matter not expressly addressed in this Settlement Agreement. The Parties further agree that this matter is being settled as purely a business decision without regard to the merits of any Claim. M. REPRESENTATIONS AND WARRANTIES 1. CORR hereby stipulates, represents and warrants to AUSTIN FILTER as follows: (a) That CORR 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 Settlement Agreement are valid, binding and enforceable as against CORR; (c) That CORR is adequately represented by competent counsel and accountants of its own choosing in connection with the execution and delivery of this Settlement Agreement and in any and all matters relating thereto; (d) That CORR is not under any form of legal disability or incapacity at the time that they execute this Settlement Agreement; (e) The CORR does not owe AUSTIN FILTER any fiduciary duty and that CORR has not relied upon AUSTIN FILTER in a confidential or trust relationship in entering into this Settlement Agreement. (f) That in executing this Settlement Agreement, CORR 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 Settlement Agreement by promises, agreements or representations not expressly stated herein, and they have freely and willingly executed this Settlement Agreement and expressly disclaim reliance upon any facts, promises, undertakings or representations made by AUSTIN FILTER or its attorneys other than the express agreements, stipulations, representations and warranties contained herein; (g) That the consent of CORR to this Settlement Agreement was not procured, obtained or induced by improper conduct, undue influence or duress; Page 3 of 7 (h) That after investigation and consultation with its attorneys, CORR agrees that this Settlement Agreement is fair, reasonable, and supported by good, valid, and adequate consideration; (i) That CORR 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 AUSTIN FILTER, arising from or out of the Delay Claim, in order to make an informed and considered decision to enter into this Settlement Agreement, and that it is CORR'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 AUSTIN FILTER not otherwise reserved under this Settlement Agreement; 0) That CORR is not in a significantly disparate bargaining position with AUSTIN FILTER; (k) That CORR understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That CORR understands and intends that AUSTIN FILTER rely upon these representations and warranties in entering into this Settlement Agreement. 2. AUSTIN FILTER hereby stipulates, represents and warrants to CORR as follows: (a) That AUSTIN FILTER 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 Settlement Agreement are valid, binding and enforceable as against AUSTIN FILTER; (c) That AUSTIN FILTER is adequately represented, or had an opportunity to be represented, by competent counsel and accountants of its own choosing in connection with the execution and delivery of this Settlement Agreement and in any and all matters relating thereto; (d) That AUSTIN FILTER is not under any form of legal disability or incapacity at the time that they execute this Settlement Agreement; (e) The AUSTIN FILTER does not owe CORR any fiduciary duty and that AUSTIN FILTER has not relied upon CORR in a confidential or trust relationship in entering into this Settlement Agreement. (f) That in executing this Settlement Agreement, AUSTIN FILTER has relied upon its own judgment and, where applicable, the advice of its own attorneys, and further, that they have not been induced to sign or execute this Settlement Agreement by promises, agreements or representations not expressly stated herein, and they have freely and willingly executed this Settlement Agreement and expressly disclaim reliance upon any facts, promises, undertakings or representations made by CORR or its attorneys other than the express agreements, stipulations, representations and warranties contained herein; (g) That the consent of AUSTIN FILTER to this Settlement Agreement was not procured, obtained or induced by improper conduct, undue influence or duress; Page 4 of 7 (h) That after investigation and consultation with its attorneys, or an opportunity thereto, AUSTIN FILTER agrees that this Settlement Agreement is fair, reasonable, and supported by good, valid, and adequate consideration; (i) That AUSTIN FILTER 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 CORR, arising from or out of the Delay Claim, in order to make an informed and considered decision to enter into this Settlement Agreement, and that it is AUSTIN FILTER's intention, and in exchange for the consideration recited herein, to fully and finally release all Claims that they have against CORR; 0) That AUSTIN FILTER is not in a significantly disparate bargaining position with CORR; (k) That AUSTIN FILTER understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That AUSTIN FILTER understands and intends that CORR rely upon these representations and warranties in entering into this Settlement Agreement. IV. MISCELLANEOUS PROVISIONS 1. Parties Bound. This Settlement 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 Settlement 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 Settlement 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. Governmental Immunity. Nothing in this Settlement Agreement shall be deemed to waive, modify or amend any legal defense available at law or in equity to either of the Parties nor to create any legal rights or claim on behalf of any third party. The City does not waive, modify, or alter to any extent whatsoever the availability of the defense of governmental immunity under the laws of the State of Texas and of the United States. 5. Governing Law and Venue. This Settlement Agreement shall be construed and interpreted in accordance with and governed by the laws of the State of Texas, without regard to choice of law principles. Venue shall be in Williamson County, Texas. 6. Headings. The headings contained in this Settlement Agreement are merely for convenience of reference and shall not under any circumstances affect the meaning or interpretation of this Settlement Agreement. Page 5 of 7 7. THIS WRITTEN SETTLEMENT 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. IN WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement to be executed as of the day and year first above written. ATTEST: L'-fi Christine R. Martinez Title: City Secretary APPROVED AS TO FORM: Un Stephan L. Sheets Title: City Attorney AUSTIN FILTER STEMS, INC. A7;i By: Mark Toungate Title: President CITY OF ROUND ROCK By: Nyle Maxwell Title: Mayor Page 6 of 7 STATE OF TEXAS § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by Mark Toungate, President of AUSTIN FILTER SYSTEMS, Inc., on this 13 day of January, 2004. RACHEL OL,SON NOTARY PUBW ` STATE OF TEXAS W COMM. EXP. M9tI00 STATE OF TEXAS § COUNTY OF WILLIAMSON § Notary Public, State of Texas My Commission Expires: o8liv�,zae7 SUBSCRIBED AND SWORN TO before me by Nyle Maxwell, Mayor of the City of Round Rock, on this day of January, 2004. Notary Public, State of Texas My Commission Expires: Page 7 of 7 _ ♦, � � �■ ■� � ��■ ISI/♦♦ ♦♦ ♦♦�♦ � ��111111111111►��,�� I►•'�, ',ttt��t ��.��♦/ �� ♦♦♦♦♦♦♦♦� ♦♦�,� iii �� i ��,'1� �\\'�♦�i�� ♦ ♦ ♦♦ ice •♦ ♦ ♦� �♦ MOM IN 1111 � ,♦ •� •�� i �� .♦ ♦♦ 1 WMEMEMMOMME 1111111111111111WV 1/N�1 II . �♦ ♦♦ �♦ �� ♦ ,�� ♦ . .�•i 11111111111111 ♦ �� • ►� ♦��•♦• �♦�� • �� •��• •• �� ..��\IIIIIIIIIIIIIII.. 121all • �' ��♦ ♦♦ ♦♦♦♦�� /� ��• ♦ • ��' ��1 ♦i�i�X111111■ •� 111 � � ♦ ♦• ♦♦ ♦ �� •�i�� ♦i • 1► � X111%/�►� • ,♦ �♦ •♦♦� �� ♦��♦ �� ♦G♦G 9 �I♦��► �� '�1►�v\� ON INJURE►♦�I�,• ,�♦� 1i♦♦♦i♦�� 1►�� ♦�♦�1��♦♦ �� I��I ��11►�♦fir �� I� 11� ♦♦,♦ � .♦ � ��III ��,�� j�� I ♦♦ moi � ♦ ♦ � � ♦ii• � � �� ♦ •♦ �_ - ��iOMP i�� . ♦♦♦ ��,�� • �\ �� ♦ co =111 �I ♦♦ �♦ ♦♦ �� , . �,�� ;1%�� ,,,\\\� I/llllllllllllll Roadway Improvements to Dell Way, Dell Center Blvd., MAAS Gattis School Rd. and entance to Boardwalk Shopping Center • r ■ DATE: January 16, 2004 SUBJECT: City Council Meeting - January 22, 2004 ITEM: 14.E.4. Consider a resolution authorizing the Mayor to execute a Settlement Agreement with Austin Filter Systems, Inc. for the Roadway Improvements to Dell Way, Dell Center Boulevard, and Gattis School Road Project. Resource: Tom Word, Chief of Public Works Operations T. G. Martin, Director of Transportation Services Bill Stablein, Transportation Engineering Associate History: On August 10, 2000, the City Council approved Resolution No. R-00-08-10- 1OB7 in which Austin Filter Systems, Inc., would be responsible for the construction of the Dell Way, Dell Center Blvd, Gattis School Road and entrance to the Boardwalk Shopping Center in the amount of $1,173,403.00. To date, there have been thirteen approved Change Orders to this contract which resulted in a final construction cost of $1,391,619.09. This project, which was originally to be finished in 240 calendar days, was finally completed in 915 calendar days. Due to the delays, the contractor submitted a claim in the amount of $198,965.03. Based on review of the claim by staff, the number of additional days to complete this project should be reduced from 675 calendar days to 628 calendar days, all attributable to the City, resulting in a reduction in the amount of the claim to $185,453.59. Funding: Cost: $185,453.59 Source of Funds: Round Rock Transportation System Development Corporation Outside Resources: Austin Filter Systems, Inc. Impact/Benefit: Settlement of this claim will finalize this project and mitigate the possibility of litigation to settle this claim in the future. Public Comment: N/A Sponsor: N/A EXECUTED DOCUMENT FOLLOWS SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT and RELEASE (the "Settlement Agreement") is entered into this c 1 c ( day of JANUARY , 2004, by and between City of Round Rock, a home -rule municipal corporation ("CORR"), and Austin Filter Systems, Inc. a Texas corporation ("AUSTIN FILTER"), hereinafter collectively referred to as ("Parties"). WITNESSETH: WHEREAS, on or about August 10, 2000, the Parties entered an Agreement (the "Agreement") wherein AUSTIN FILTER agreed to commence and complete the construction of certain improvements described as the Dell Way, Gattis School Road and Home Depot Bridge — Street & Drainage Construction (the "Project"); WHEREAS, the terms of the Agreement require that the Project be completed within two hundred forty (240) calendar days after the date of the written Notice -to -Proceed (the "Contract Period"); WHEREAS, on or about September 28, 2000, a written Notice -to -Proceed was issued by the CORR; WHEREAS, on or about April 1, 2003, a final walk through was conducted by the parties and preliminary acceptance was given by CORR and with a Certificate of Acceptance issued by the CORR on August 14, 2003; WHEREAS, the Contract Period was exceeded by Six Hundred Seventy-five (675) days of which Six Hundred Twenty-eight (628) days were due to time delays claimed to be caused by or on behalf of the CORR ("Delay Period"); WHEREAS, AUSTIN FILTER has made a claim to CORR for additional costs incurred and associated with the Delay Period ("Delay Claim"); and WHEREAS, the Parties have determined that it is in their respective interests to terminate all disputes and controversies existing between them relating to the Agreement and the Parties have negotiated and agreed to a settlement of all disputes and controversies between them relating to the Agreement; NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the adequacy and sufficiency of which are hereby acknowledged, and with the intent to be legally bound hereby, the parties hereto agree as follows: I. AGREEMENTS 1. In consideration of the total sum of One Hundred Eighty -Five Thousand Four Hundred Fifty-three and 59/100 Dollars ($185,453.59) paid by CORR to AUSTIN FILTER, the Page 1 of 7 receipt and sufficiency of which is hereby acknowledged by AUSTIN FILTER, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, AUSTIN FILTER hereby accepts the above -referenced payment in full settlement, compromise and release of all claims as arising out of or in connection with the Agreement against CORR. 2. Each Party agrees to be solely responsible for the payment of their respective attorney's fees and all other expenses incurred on said Party's behalf as a result of or in connection with the Settlement Agreement. II. RELEASE BY CLAIMANTS 1. Definition. As used in this Settlement Agreement, the term "Claims" shall mean and refer to any and all claims of any kind or character whatsoever in law or in equity, foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, including, without limitation, claims for usury, breach of contract, libel, slander, failure to provide goods and services, failure to act in a commercially reasonable manner, extra -contractual damages, violations of the Texas Deceptive Trade Practices act, violations of the Texas Business and Commerce Code, 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, dues, accounts, bonds, covenants, contracts, agreements, actions, cross -actions, rights of recovery, judgments, 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 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 penalties for usurious interest paid, taken, received, reserved, contracted for or demanded; damage to business reputation; lost profits or good will; consequential damages; damages ensuing from loss of credit; and pre judgment and post- judgment interest, costs and attorneys' fees. 2. In consideration for the agreements of CORR, acting for and with the intention of binding itself and its respective heirs, legal representatives, executors, administrators, successors, assigns, receivers and trustees and all beneficiaries for whom CORR may be acting as trustee, AUSTIN FILTER hereby RELEASES, WAIVES, ACQUITS and FOREVER DISCHARGES CORR, and its agents, servants, employees, officers, directors, shareholders, attorneys, successors, and assigns, past and present, from any and all Claims (as defined above), which AUSTIN FILTER now has, ever had, or ever may have against CORR that arise out of the Agreement or the Delay Claim, except for any breaches of warranties, representation or obligations expressly set forth in this Settlement Agreement or that are required by or survive the completion of the Project. Page 2 of 7 3. In consideration for the agreements of AUSTIN FILTER, acting for and with the intention of binding itself and its respective heirs, legal representatives, executors, administrators, successors, assigns, receivers and trustees and all beneficiaries for whom AUSTIN FILTER may be acting as trustee, CORR hereby RELEASES, WAIVES, ACQUITS and FOREVER DISCHARGES AUSTIN FILTER, and its agents, servants, employees, officers, directors, shareholders, attorneys, successors, and assigns, past and present, from any and all Claims (as defined above), which CORR now has, ever had, or ever may have against AUSTIN FILTER that arise out of the Agreement or the Delay Claim, except for any breaches of warranties, representation or obligations expressly set forth in this Settlement Agreement or that are required by or survive the completion of the Project. 4. The Parties acknowledge that this Settlement Agreement is being offered as a settlement of a Claim and is not an admission by the Parties of liability or of any other matter not expressly addressed in this Settlement Agreement. The Parties further agree that this matter is being settled as purely a business decision without regard to the merits of any Claim. M. REPRESENTATIONS AND WARRANTIES 1. CORR hereby stipulates, represents and warrants to AUSTIN FILTER as follows: (a) That CORR 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 Settlement Agreement are valid, binding and enforceable as against CORR; (c) That CORR is adequately represented by competent counsel and accountants of its own choosing in connection with the execution and delivery of this Settlement Agreement and in any and all matters relating thereto; (d) That CORR is not under any form of legal disability or incapacity at the time that they execute this Settlement Agreement; (e) The CORR does not owe AUSTIN FILTER any fiduciary duty and that CORR has not relied upon AUSTIN FILTER in a confidential or trust relationship in entering into this Settlement Agreement. (f) That in executing this Settlement Agreement, CORR 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 Settlement Agreement by promises, agreements or representations not expressly stated herein, and they have freely and willingly executed this Settlement Agreement and expressly disclaim reliance upon any facts, promises, undertakings or representations made by AUSTIN FILTER or its attorneys other than the express agreements, stipulations, representations and warranties contained herein; (g) That the consent of CORR to this Settlement Agreement was not procured, obtained or induced by improper conduct, undue influence or duress; Page 3 of 7 (h) That after investigation and consultation with its attorneys, CORR agrees that this Settlement Agreement is fair, reasonable, and supported by good, valid, and adequate consideration; (i) That CORR 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 AUSTIN FILTER, arising from or out of the Delay Claim, in order to make an informed and considered decision to enter into this Settlement Agreement, and that it is CORR'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 AUSTIN FILTER not otherwise reserved under this Settlement Agreement; 0) That CORR is not in a significantly disparate bargaining position with AUSTIN FILTER; (k) That CORR understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That CORR understands and intends that AUSTIN FILTER rely upon these representations and warranties in entering into this Settlement Agreement. 2. AUSTIN FILTER hereby stipulates, represents and warrants to CORR as follows: (a) That AUSTIN FILTER 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 Settlement Agreement are valid, binding and enforceable as against AUSTIN FILTER; (c) That AUSTIN FILTER is adequately represented, or had an opportunity to be represented, by competent counsel and accountants of its own choosing in connection with the execution and delivery of this Settlement Agreement and in any and all matters relating thereto; (d) That AUSTIN FILTER is not under any form of legal disability or incapacity at the time that they execute this Settlement Agreement; (e) The AUSTIN FILTER does not owe CORR any fiduciary duty and that AUSTIN FILTER has not relied upon CORR in a confidential or trust relationship in entering into this Settlement Agreement. (f) That in executing this Settlement Agreement, AUSTIN FILTER has relied upon its own judgment and, where applicable, the advice of its own attorneys, and further, that they have not been induced to sign or execute this Settlement Agreement by promises, agreements or representations not expressly stated herein, and they have freely and willingly executed this Settlement Agreement and expressly disclaim reliance upon any facts, promises, undertakings or representations made by CORR or its attorneys other than the express agreements, stipulations, representations and warranties contained herein; (g) That the consent of AUSTIN FILTER to this Settlement Agreement was not procured, obtained or induced by improper conduct, undue influence or duress; Page 4 of 7 (h) That after investigation and consultation with its attorneys, or an opportunity thereto, AUSTIN FILTER agrees that this Settlement Agreement is fair, reasonable, and supported by good, valid, and adequate consideration; (i) That AUSTIN FILTER 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 CORR, arising from or out of the Delay Claim, in order to make an informed and considered decision to enter into this Settlement Agreement, and that it is AUSTIN FILTER's intention, and in exchange for the consideration recited herein, to fully and finally release all Claims that they have against CORR; 0) That AUSTIN FILTER is not in a significantly disparate bargaining position with CORR; (k) That AUSTIN FILTER understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That AUSTIN FILTER understands and intends that CORR rely upon these representations and warranties in entering into this Settlement Agreement. IV. MISCELLANEOUS PROVISIONS 1. Parties Bound. This Settlement 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 Settlement 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 Settlement 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. Governmental Immunity. Nothing in this Settlement Agreement shall be deemed to waive, modify or amend any legal defense available at law or in equity to either of the Parties nor to create any legal rights or claim on behalf of any third party. The City does not waive, modify, or alter to any extent whatsoever the availability of the defense of governmental immunity under the laws of the State of Texas and of the United States. 5. Governing Law and Venue. This Settlement Agreement shall be construed and interpreted in accordance with and governed by the laws of the State of Texas, without regard to choice of law principles. Venue shall be in Williamson County, Texas. 6. Headings. The headings contained in this Settlement Agreement are merely for convenience of reference and shall not under any circumstances affect the meaning or interpretation of this Settlement Agreement. Page 5 of 7 7. THIS WRITTEN SETTLEMENT AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. IN WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement to be executed as of the day and year first above written. ATTEST: By: le, Christine R. Martinez Title: City Secretary APPROVED AS TO FORM: Lo Stephan L. Sheets Title: City Attorney AUSTIN FILTE SYSTEMS, INC. By: Mark Toungate Title: President CITY OF ROUND ROCK by�Vyle Maxwell Title: Mayor Page 6 of 7 STATE OF TEXAS COUNTY OF WILLIAMSON SUBSCRIBED AND SWORN TO before me by Mark Toungate, President of AUSTIN FILTER SYSTEMS, Inc., on this /3"*` day of January, 2004. ----�.LSON �"A.yP — RACHEL ®� NOTARY PUBLIC STATE OF TEXAS MY COMM. EXP. 08/19/2007 STATE OF TEXAS COUNTY OF WILLIAMSON Notary Public, State of Texas My Commission Expires:_oT�a�o� SUBSCRIBED c2D SWORN TO before me by Nyle Maxwell, Mayor of the City of Round Rock, on this day of January, 20,Q4. U�' k' J)� —" _ Notary Public, State of Texas CHRISTINE R. MARTINEZ 8—p� — D M MY COMMISSION EXPIRES y Commission Expires: August 28, 2005 f Page 7 of 7