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R-04-02-12-16A - 2/12/2004RESOLUTION NO. R -04-02-12-16A WHEREAS, on or about December 31, 2002, the Austin American - Statesman filed suit against the City of Round Rock in Cause No. 02- 784-C26; Cox Texas Newspapers, L.P., d/b/a Austin American -Statesman vs. City of Round Rock, Texas, alleging that the City violated Section 551.074 of the Texas Open Meetings Act by making a final action, decision, and/or vote concerning the selection of a City Manager while in executive session and by failing to provide the public sufficient notice of the subject matter of the City's December 19, 2002 meeting, and WHEREAS, the parties have agreed to settle the disputes that have arisen between them pertaining to the lawsuit and the violations and claims alleged therein, and WHEREAS, the City and the Austin American -Statesman desire to enter into a Settlement Agreement 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 with the Austin American- Staesman, 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. @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/SETTLEMT.WPD/sc RESOLVED this 12th day of February, 2004. N WE Mayor City of Round Rock, Texas AT S g� CHRISTINE R. MARTINEZ, Cit"Secreta CAUSE NO. 02-784-C26 COX TEXAS NEWSPAPERS, L.P., § DB/AA USTIN AMERICAN- § STATESMAN, § IN THE DISTRICT COURT OF Plaintiff, § V. § WILLIAMSON COUNTY, TEXAS CITY OF ROUND ROCK, § TEXAS, § Defendant. § 26" JUDICIAL DISTRICT SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement') is being made and entered into, by, and between COX TEXAS NEWSPAPERS, L.P., d/b/a AUSTIN AMERICAN -STATESMAN, (herein "AAS') and CITY OFROUND ROCK, TEXAS (herein "City") (both collectivelyreferred to herein as "Parties'), and is being made for, in consideration of, and in reliance of the agreements set forth herein. WITNESSETH WHEREAS, from December 17, 2002, through December 19, 2002, the Round Rock City Council ("Council") met in a series of executive (closed to the public) and regular (open to the public) sessions to interview candidates and to deliberate and discuss the appointment of a City Manager; and WHEREAS, Section 551.074 of the Texas Open Meetings Act ("Act') states, in part, that the Act does not require a governmental body to conduct an open meeting to deliberate the appointment or employment of a public officer or employee; and WHEREAS, Section 551.102 of the Act states, in part, that "(a) final action, decision, or vote on a matter deliberated in a closed meeting ... may only be made in an open meeting that is held in compliance with the notice provisions" of the Act; and WHEREAS, on or about December 31, 2002, the AAS filed suit against the City in the above -captioned cause number for violations of the Act ("Lawsuit"). Specifically, the AAS alleged that the City violated the Act by making a final action, decision, and/or vote concerning the selection of a City Manager while in executive session and by failing to provide the public sufficient notice of the subject matter of the City's December 19, 2002 meeting; and EXHIBIT D "All WHEREAS, on or about January 24, 2003, the City filed an answer to the Lawsuit denying the claims asserted by AAS and asserted certain defenses, including jurisdiction and sovereign immunity; and WHEREAS, the City and AAS have agreed to settle the disputes that have arisen between them pertaining to the Lawsuit and the violations and claims alleged therein; and WHEREAS, the City and AAS have agreed to enter into and execute this Agreement for the purpose of setting forth the terms and provisions of their agreement regarding the resolution of said disputes; and NOW THEREFORE, the City and AAS, for and in reliance of and in consideration of the agreements set forth herein, hereby agree as follows: 1. Consideration. The Parties agree that good and sufficient consideration exists to support enforcement of this Agreement. A. At the first publicallyheld and noticed City Council meeting following the execution and acceptance of this Agreement, Mayor Nyle Maxwell, on behalf of the City Council, will publically announce the facts and agreements made herein by reading on the record and in the public session the statement attached hereto and incorporated herein as Exhibit "A". B. The City further agrees and understands that the terms of this Agreement, including any and all of its incorporated attachments or exhibits, are deemed open to the public and subject to review upon request by any member of the public. City further agrees and understands that its promises, representations, and agreements, as outlined in this Agreement, are relied upon by AAS in executing and entering into the specific terms of this Agreement and in filing its Motion to Dismiss with Prejudice as stated in paragraph 3 below. I AAS. In exchange for and within 5 business days of the completion of the agreed actions by the City as stated in paragraph 2. A. above, AAS agrees to execute the Agreed Motion to Dismiss with Prejudice and tender to the Court, for execution, the Agreed Order dismissing the Lawsuit with Prejudice, copies of which are attached hereto as Exhibits `B" and "C", respectively, and are incorporated herein. 4. Controlling Law. This Agreement shall be controlled by and construed in accordance with the laws of the State of Texas. Venue for any action filed by any party hereto in regard to this Agreement or the enforcement hereof shall be in the District Courts of Williamson County, Texas. Settlement Agreement Page 2 5. Binding Effect. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective agents, employees, officers, directors, shareholders, successors, and assigns. 6. Authorfty to Sign. Each of the individuals signing this Agreement on behalf of a party hereto hereby represents that said individual has the authority to sign this Agreement on behalf of the party for which said individual is acting and has the authority to bind the party for which said individual is acting to the terms and conditions set forth in this Agreement. 7. Representation By Counsel/Responsibility for Attorneys' Fees, Costs and Expenses Each of the Parties hereto hereby acknowledge that they have been represented by independent counsel, and each party shall be responsible for any and all attorneys' fees, costs and expenses incurred by said party related to the Lawsuit. S. Complete Settlement. The Parties expressly warrant to one another that no promise or. inducement was offered by the other except as herein stated; and that this Agreement is executed without reliance upon any representation of any person or party released, or their representatives, concerning the nature and extent of the legal liability except as herein stated. The Parties agree that no term herein waives AAS or the City from its duties and obligations as expressly stated herein or any reliances expressly stated herein. 9. Interpretation. This Agreement has been and shall be construed to have been drafted by the Parties to it so that the rule concerning and construing ambiguities in an agreement against its drafter shall have no force or effect. 10. Multiple Counterparts. This Agreement can be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall constitute one in the same instrument. 11. Non -Assignment. AAS and City hereby represent and warrant that they have not transferred, conveyed, pledged, assigned or made any other disposition of the claims settled herein and that they are the sole owners of said claims. 12. Captions. The captions utilized in this Agreement are for convenience purposes only and shall not be substantive in nature. 13. Invalid Terms. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. 14. Effective Date. The Effective Date of this Agreement shall be on the is day of _ Q , 2004. Signed to be effective on the Effective Date of this Agreement. Settlement Agreement Page 3 COX TEXAS NEWSPAPERS, L.P., d/b/a AUSTINA CAN -ST ESMAN By: ITS: Date: STATE OF TEXAS § COUNTY OF TP jk V IS § BEFORE ME, the undersigned authority, on this date personally appeared 0)1 K2, L.0.D SGC P u b l ; s h e r of known tome to be the person who executed the foregoing instrument on behalf of Cox Texas Newspapers, L.P., d/b/a Austin American Statesman, and who acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated. 2004. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ( () day of _ 5-CbrLAAr!! , C M Nicholson Notary Public State of Texas MyCbmmission Expires NOVEMBER 30, 2006 Notary Public in and for the State of Texas Settlement Agreement Page 4 By: CITY OF ROUND R XAS Name: N Title: _ Date: '2-,/3-0 STATE OF TEXAS COUNTY OF _W ILLI A-YYISOA) BEFORE ME, the undersigned authority, on this date personally appeared 114V1,E l'njqy-LjGLL- ,_ AWW-, oftheCity ofRoundRock Texas, fmown to me to be the person who executed the foregoing instrument on behalf of said City, and who acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _a day of�, 2004. _ia P CHRISTINE R. MARTINEZ MY COMMISSION EXPIRES 3QAug`u 28' X005 Notary Public in and for the State of Texas Settlement Agreement Page 5 EXHIBIT "A" Statement by the Round Rock City Council On December 19, 2002, the Round Rock City Council met in executive session to deliberate and discuss the appointment of a new City Manager. Following that meeting, the Statesman contended that a violation of the Texas Open Meetings Act had occurred and filed a lawsuit against the City. To emphasize the City's and the Statesman's continued commitment to open government, the parties have decided to settle the lawsuit and the City to issue this public statement. The Texas Open Meetings Act requires that a final action, decision, or vote on a matter that has been deliberated in a closed meeting be made in an open meeting. During the six hours of executive session, the Councilmembers did indicate their preferences for certain candidates on a paper ballot and through an oral poll. The Statesman contends that these types of activities violate the Open Meeting laws. Conversely, the City contends that the manner in which they were taken did not violate the Open Meeting laws. Rather than continue with time-consuming and expensive litigation, the City Council has agreed to make public its sworn answers to interrogatories submitted by the Statesman and to invite each citizen to review the facts and decide for themselves. The City acknowledges that the use of paper ballots and oral polls may create an appearance of a violation of Open Meeting laws. The City acknowledges the vital role that open government plays and agrees that it will remain committed to open government, including the Texas Open Meetings Act and the Public Information Act, as well as the participation of the public in the meetings of the City. With the counsel of the City Attorney, the City Council will not take a final action, decision, or vote while in executive session whether by paper ballot or otherwise. It is important for the government to embrace open government in our society. Working with public participation and knowledge is ultimately for the good of all citizens committed to democratic ideals. The City of Round Rock supports this goal, and will do all possible to ensure that citizens are fully informed participants in the governmental process and that it abides by the Texas Open Meetings Act. axwe , ayor 63237 EXHIBIT "B" CAUSE NO. 02-784-C26 COX TEXAS NEWSPAPERS, L.P., § D/B/A AUSTINAMERICAN- § STATESMAN, § IN THE DISTRICT COURT OF Plaintiff, § V. § WILLIAMSON COUNTY, TEXAS CITY OF ROUND ROCK, § TEXAS, § Defendant. § 20h JUDICIAL DISTRICT AGREED MOTION TO DISMISS ALL CLAIMS WITH PREJUDICE NOW COME, Plaintiff, Cox Texas Newspapers, L.P., d/b/a Austin American Statesman (herein "AAS"), and Defendant, City ofRound Rock, Texas (herein "City"), and respectfully submit this Agreed Motion to Dismiss All Claims with Prejudice, and show the Court the following: 1. AAS no longer wishes to prosecute any claims for declaratory, affirmative, or equitable relief and causes of action asserted or that may have been asserted against City in the above -captioned lawsuit ("Lawsuit") ("AAS Claims'). 2. City no longer wishes to prosecute any claims, causes of action, or defenses asserted or that may have been asserted against AAS in the Lawsuit ("City Claims"). same. 3. The fees and costs, if any, in this Lawsuit should be taxed against the party incurring 4. AAS and City agree to dismiss all claims, asserted or unasserted, either may have, have had, or could have against one another with prejudice relating to the Lawsuit. Settlement Agreement Page 9 WHEREFORE, PREMISES CONSIDERED, AAS and City respectfullypray that the Court grant this Agreed Motion to Dismiss with Prejudice; dismiss the AAS Claims and the City Claims with Prejudice to the re -filing of same; tax the costs and fees, if any, against the party incurring same; and for such other and further relief at law or in equity to which the parties have shown themselves to be justly entitled. Respectfully submitted, I . By: v i uvMa Jo J. Mc NoI11500 Stat Bar William Christian State Bar ID No. 00793505 Jennifer Piskun Johnson State Bar ID No. 00791452 GRAVES, DOUGHERTY, HEARON & MOODY A Professional Corporation 515 Congress Avenue, Suite 2300 P. O. Box 98 Austin, TX 78767-0098 (512) 480-5600 Telephone (512) 478-1976 Telecopier LOCAL COUNSEL: Mark Dietz State Bar ID No. 05857200 Dietz &Associates, PC 106 Fannin Avenue East Round Rock, Texas 78664 (512) 244-9314 Telephone (512) 244-3766 Telecopier ATTORNEYS FOR PLAINTIFF Settlement Agreement Page 10 By. r"" C. Robert Heath State Bar ID. No. 09347500 Bickerstaff, Heath, Pollan, Kever & McDaniel, LLP 816 Congress Avenue Suite 1700 Austin, Texas 78701 (512) 472-8021 Telephone (512) 320-5638 Telecopier Stephan L. Sheets State Bar Id No. E ffi E00 Sheets & Crossfield, PC 309 East Main Street Round Rock, Texas 78664 (512) 255-8877 Telephone (512) 255-8986 Telecopier ATTORNEYS FOR DEFENDANT Settlement Agreement Page 11 EXHIBIT "C" CAUSE NO. 02-784-C26 COX TEXAS NEWSPAPERS, L.P., § D/B/A A USTW AMERICAN- § STATESMAN, § IN THE DISTRICT COURT OF Plaintiff, § V. § WILLIAMSON COUNTY, TEXAS CITY OF ROUND ROCK, § TEXAS, § Defendant. § 260'JUDICIAL DISTRICT ORDER GRANTING AGREED MOTION TO DISMISS WITH PREJUDICE Came on to be heard this day, the Agreed Motion to Dismiss with Prejudice ("Motion") jointly filed by Plaintiff, Cox Texas Newspapers, L.P., d/b/a Austin American Statesman ("AAS") and Defendant, City ofRound Rock, Texas ("City"). The Court, having considered the Motion, the record in this cause, and the papers on file, is of the opinion that the Motion should be granted. It is therefore, ORDERED, ADJUDGED AND DECREED, that the Motion shall be and hereby is granted. It is further, ORDERED, ADJUDGED AND DECREED, that AAS's claims for declaratory, equitable, and affirmative relief and causes of action asserted or that may have been asserted against City in the above -captioned lawsuit ("Lawsuit') shall be and hereby are dismissed with prejudice to re- filing. It is further, Settlement Agreement Page 12 ORDERED, ADJUDGED AND DECREED, that City's claims, defenses, and any causes of action asserted against or that may have been asserted against AAS in this Lawsuit shall be and hereby are dismissed with prejudice to re -filing. It is further, ORDERED, ADJUDGED AND DECREED, that all fees and costs in this Court shall be taxed against the party incurring the same. SIGNED THIS day of , 2004. THE HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING Settlement Agreement Page 13 APPROVED AS TO FORM and CONTENT: QJ.M' St to Bar N 3711500 1�4lliam Christian State Bar ID No. 00793505 Jennifer Piskun Johnson State Bar ID No. 00791452 GRAVES, DOUGHERTY, HEARON & MOODY A Professional Corporation 515 Congress Avenue, Suite 2300 P. O. Box 98 Austin, TX 78767-0098 (512) 480-5600 Telephone (512) 478-1976 Telecopier LOCAL COUNSEL: Mark Dietz State Bar ID No. 05857200 Dietz &Associates, PC 106 Fannin Avenue East Round Rock, Texas 78664 (512) 244-9314 Telephone (512) 244-3766 Telecopier ATTORNEYS FOR PLAINTIFF Settlement Agreement Page 14 APPROVED AS TO FORM and CONTENT: /Z12 C. Robert Heath State Bar ID. No. 09347500 Bickerstaff, Heath, Pollan, Kever & McDaniel, LLP 816 Congress Avenue Suite 1700 Austin, Texas 78701 (512) 472-8021 Telephone (512) 320-5638 Telecopier Stephan L'Sheets State Bar Id. No. Sheets & Crossfield, PC 309 East Main Street Round Rock, Texas 78664 (512) 255-8877 Telephone (512) 255-8986 Telecopier ATTORNEYS FOR DEFENDANT Settlement Agreement Page 15 EXECUTED DOCUMENT FOLLOWS MEMORANDUM OF UNDERSTANDING As a result of mediation conducted on February 10, 2004, Cox Texas Newspapers, L.P./ d/b/a Austin American -Statesman (AAS) and the City of Round Rock, Texas (City) agree to resolve all issues in dispute between them in the litigation now pending as cause number 02-784- C26 in the 26a' Judicial District Court of Williamson County, Texas, on the following terms and conditions: 1. Once approved by the Round Rock City Council, authorized representatives of the parties will execute the Settlement Agreement and attached Exhibits A (Statement), B (Motion to Dismiss), and C (Order Granting Motion to Dismiss) which are attached to this memorandum. 2. The parties acknowledge that a called meeting of the Round Rock City Council is scheduled for February 12, 2004, for the purpose of determining whether to agree to the terms of this proposed settlement, and that this agreement is subject to the approval of the City Council. 3. Once approved as provided above, the Statement will be announced as provided in the Settlement Agreement. The Motion and Order to Dismiss will be presented to the Court for approval, signature, and filing on or before February 18, 2004. Signed this 10th day of February, 2004. — e4 - Michaelsa, Publis Cox Texas Newspapers, L.P./ /a Austin Amxericanttatesman Jehpifer Jolson( A�orney for Cox1Texas ews rs, L.P./ d/b/a A156n American -Statesman � krt�' Mark Dietz, ttorneff Cox Texas Newspapers, L.P./ d/b/a Austin American -Statesman P-D4-Oa-1a-I49A 4 Maxwell, Mayor City o Round Rock, Texas LAU-& Stepha Sheets, Attorney for City of Round Rock, Te s C. Robert Hea th, Attorney for City of Round Rock, Texas