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R-06-08-10-10F2 - 8/10/2006RESOLUTION NO. R -06-08-10-10F2 WHEREAS, the City of Round Rock ("City") is a defendant in Cause No. 97-314-C277; Richard Wallace Pearce and Jesse Ray Blann vs. City of Round Rock, et al., and WHEREAS, a proposal has been made 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 for the above referenced cause, 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 in Cause No. 97-314-C277; Richard Wallace Pearce and Jesse Ray Blann vs. City of Round Rock, et al., a copy of same being attached hereto as Exhibit "A" and incorporated herein. 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 10th day of August, ATTEST! -J� A • • I Allp Mayor of Round Rock, Texas CHRISTINE R. MARTINEZ, City Secreta WPFDesktop/::ODMA/WORLDO%/O: /wdox/RESOLVLI/R60810F2 .WPO/rmc SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE This Settlement Agreement and Full and Final Release ("Agreement") is entered into between The City of Round Rock ("Round Rock") and Richard Wallace Pearce and Jesse Ray Blann, and their heirs, agents, assigns, entities, corporations, and representatives (collectively referred to as the "Plaintiffs"). I. WHEREAS, the parties are in dispute over the legality of nine billboard structures erected by the Plaintiffs in 1996 in Round Rock's Extraterritorial Jurisdiction; WHEREAS, this dispute has been the subject of protracted litigation between the parties in the lawsuits styled: Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock, In the 368th Judicial District Court of Williamson County, Texas, Cause No. 97-098-C368; and Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock, Frank del Castillo, Terry Hagood, Keith Hickman, Brian Lott, Mark Silla, and Joseph Vining, In the 277th Judicial District Court of Williamson County, Texas, Cause No. 97-314-C277; City of Round Rock, Texas v. Richard Wallace Pearce, Jesse Ray Blann, and Jaab Investements, Inc., In the 368th Judicial District Court of Williamson County, Texas, Cause No. 98-353-C368; and Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock, Frank del Castillo, Terry Hagood, Keith Hickman, Brian Lott, Mark Silla, and Joseph Vining, In the Court of Appeals for the Third Judicial District of Texas, at Austin, Cause No. 03 -98 -00233 -CV; 1 EXHIBIT WHEREAS, the Court of Appeals for the Third Judicial District of Texas, in Pearce v. City of Round Rock, 78 S.W.3d 642 (Tex.App.—Austin 2002, pet. denied), ruled that four of the Plaintiffs' signs were entitled to non -conforming use status as billboards; and WHEREAS, the parties are aware of the risks, uncertainties, and costs of continued litigation and now desire to compromise and settle all matters currently in dispute between them. Il. The terms of this Agreement are as follows: 1. Upon final approval of this Agreement by the Round Rock City Council, and subject to complying with all applicable building codes, regulations, and ordinances except as necessary to implement the terms of this Agreement, Plaintiffs shall be entitled to erect one illuminated 14' by 48' double-faced legal Non -Conforming Use Billboard, with a height not to exceed that established by the Texas Department of Transportation in Title 43, Part 1, Chapter 21, Subchapter I, §21.158, Texas Administrative Code, at 2960 Jazz Street, Round Rock, Texas. The faces on the billboard shall be oriented to be viewed from State Highway 45. Conditioned upon and subject to Plaintiffs' complying with the aforesaid ordinances and requirements, Round Rock shall grant the permits or applications necessary to construct and operate this Billboard. 2. Upon final approval of this Agreement by the Round Rock City Council, and subject to complying with all applicable building codes and ordinances except as necessary to implement the terms of this Agreement, Plaintiffs shall be entitled to erect one illuminated 14' by 48' double-faced legal Non -Conforming Use Billboard, with a height not to exceed that established by the Texas Department of Transportation in Title 43, Part 1, Chapter 21, Subchapter I, §21.158, Texas Administrative Code, at 3125 Louis Henna Blvd. (State Highway 2 45), Rock, Texas. Conditioned upon and subject to Plaintiffs' complying with the aforesaid ordinances and requirements, Round Rock shall grant the permits or applications necessary to construct and operate this billboard. 3. Plaintiffs agree that they will not allow the advertisement of any sexually oriented business on either of the Billboards as that term is defined by Round Rock's ordinances. The Parties agree that the actual damages that might be sustained by Round Rock by reason of the breach by Plaintiffs of the aforesaid covenant are uncertain and would be difficult of' ascertainment, and that the sum of $500.00 for each day that the breach continues would be reasonable compensation for such breach. Plaintiffs hereby promise to pay and Round Rock hereby agrees to accept, such sum as liquidated damages, and not as a penalty, in the event of such breach. Prior to initiating any legal action to enforce this covenant, Round Rock agrees that it will provide Plaintiffs with written notice of any alleged violations of this covenant, after which Plaintiffs shall have ten days to cure such alleged violation. 4. Plaintiffs agree that they will not be entitled to erect any other non -conforming signs or billboards within Round Rock's jurisdiction. 5. Within five days upon final approval of this Agreement by the parties, in Cause No. 97-414-C277 Plaintiffs agree to file a motion to dismiss with prejudice. III. The parties acknowledge the adequacy of consideration as expressed by the recitations and mutual covenants in this Agreement. 3 IV. In consideration of the mutual promises and covenants contained in this Agreement, the parties hereby fully release, acquit, and discharge one another (including their agents, officials, employees, representatives, attorneys, and insurers) from any and all claims, liabilities, causes of action or damages, whether known or unknown, arising out of or made the basis of the above - referenced disputes and litigation. V. The Plaintiffs hereby each jointly and separately represent and warrant that: 1. They each thoroughly understand the terms of this Agreement and have received the advice from their counsel regarding the terms and consequences of this Agreement; 2. They each enter into this Agreement knowingly, freely and voluntarily; 3. They each understand and agree that this Agreement contains everything they will ever receive from Round Rock pertaining to the aforementioned disputes and litigation between the parties; 4. Except for the promises contained in this Agreement, no representations regarding this Agreement or promises made by Round Rock, or any agent, attorney, or representative of Round Rock regarding this Agreement, has influenced them in entering into this Agreement; 5. They each fully understand and agree that the two legal Non -Conforming Use Billboards allowed to be erected under the terms of this Agreement will be considered as non- conforming uses under Round Rock's ordinances and state law; 4 6. They have not assigned or conveyed any interest in the claims that have or could have been asserted in the above -referenced lawsuits or the claims that are released in this Agreement; and 7. They are the sole owner of any released causes of action and that no third party has any interest in said claims. VI. This Agreement is made in settlement of disputed claims and causes of action, and the provisions in this Agreement are not to be construed as an admission of liability by any party, which liability is hereby denied. Further, the parties agree that nothing in this Agreement shall be construed as a waiver of Round Rock's ordinances, rules, regulations, or other laws except as necessary to implement the terms of this Agreement. VII. Each party shall bear its own attorney's fees and costs of court. VIII. This Agreement shall be binding upon and inure to the benefit of the parties and their respective representatives, officials, agents, employees, successors and assigns. IX. In the event any litigation is initiated after the date of this Agreement to construe and/or enforce this Agreement or any term hereof or in connection with any alleged breach of this Agreement, any prevailing party shall be entitled to recover all costs of litigation, including reasonable attorney's fees, expert fees, court costs, and expenses from and against any non - 5 prevailing party. Further, mandatory venue for such litigation shall be in Williamson County, Texas. X. Unless the basis of the bargain among the Parties hereto is destroyed or rendered ineffective by invalidity or unenforceability of any provision hereof, if any provision of this Agreement should be held to be void or unenforceable in any respect, then the remaining portions of this Agreement shall remain in full force and effect. XI. The Parties and their respective attorneys participated in the drafting and preparation of this Agreement. Therefore, this Agreement will not be construed in favor of or against any party on the basis that such party did or did not author this Agreement. XII. Plaintiffs have represented they have acquired lease options on the billboard sites described in this Agreement and are in the process of seeking the necessary permits from the Texas Department of Transportation. In the event the lease options are terminated by the lessors prior to the date when the billboards are erected or if the Texas Department of Transportation refuses to permit the proposed billboards, the Parties agree to use their good faith best efforts to secure a similar alternate site or sites which are mutually acceptable to the Parties. 6 XIII. This Agreement contains the entire agreement between the Parties and supersedes all prior agreements, understandings, or proposals, whether written or oral, relating to the above - referenced disputes and lawsuit. EXECUTED on this day of August, 2006. THE CITY OF ROUND ROCK, TEXAS By: Nyle Maxwell, Mayor BEFORE ME, a Notary Public, on this day personally appeared Nyle Maxwell, Mayor the City of Round Rock, Texas, known to me to be the person whose name is subscribed to the foregoing instrument and who, being duly sworn, did state and acknowledge to me on his oath that he has read and executed this SETTLEMENT AGREEMENT for the purposes and consideration therein expressed. Given under my hand and seal of office this day of August, 2006. Notary Public for the State of Texas EXECUTED on this day of August, 2006. 7 RICHARD WALLACE PEARCE BEFORE ME, a Notary Public, on this day personally appeared Richard Wallace Pearce, known to me to be the person whose name is subscribed to the foregoing instrument and who, being duly sworn, did state and acknowledge to me on his oath that he has read and executed this SETTLEMENT AGREEMENT for the purposes and consideration therein expressed. Given under my hand and seal of office this Z% day of July, 2006. 1 BETH A. REYNOLDS Notary Public, State of Texas My Commission Expires July 30, 2007 - Notary Public _for the' Texas EXECUTED on this Z,7 day of July, 2006. RAY BLANK BEFORE ME, a Notary Public, on this day personally appeared Jesse Ray Blann, known to me to be the person whose name is subscribed to the foregoing instrument and who, being duly sworn, did state and acknowledge to me on his oath that he has read and executed this SETTLEMENT AGREEMENT for the purposes and consideration therein expressed. Given under my hand and seal of office this 2,7 day of July, 2006. BETH A. REYNOLDS Notary Public, State of Texas My Commission Expires July 30, 2007 Notary Public for the Statf Texas END OF AGREEMENT 8 DATE: August 3, 2006 SUBJECT: City Council Meeting - August 10, 2006 ITEM: 10.F.2. Consider a resolution authorizing the Mayor to execute a settlement agreement concerning the Richard Wallace Pearce and Jesse Ray Blann vs. City of Round Rock et a/., lawsuit. This item will be addressed after the Executive Session. EXECUTE D DOCUMENT FOLLOWS SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE This Settlement Agreement and Full and Final Release ("Agreement") is entered into between The City of Round Rock ("Round Rock") and Richard Wallace Pearce and Jesse Ray 13lann, and their heirs, agents, assigns, entities, corporations, and representatives (collectively referred to as the "Plaintiffs"). I. WHEREAS, the parties are in dispute over the legality of nine billboard structures erected by the Plaintiffs in 1996 in Round Rock's Extraterritorial Jurisdiction; WHEREAS, this dispute has been the subject of protracted litigation between the parties in the lawsuits styled: Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock, In the 368th Judicial District Court of Williamson County, Texas, Cause No. 97-098-068; and Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock, Frank del Castillo, Terry Hagood, Keith Hickman, Brian Lott, Mark Silla, and Joseph Vining, In the 277th Judicial District Court of Williamson County, Texas, Cause No. 97-314-C277; City of Round Rock, Texas v. Richard Wallace Pearce, Jesse Ray Blann, and Jaab Investements, Inc., In the 368th Judicial District Court of Williamson County, Texas, Cause No. 98-353-C368; and Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock, Frank del Castillo, Terry Hagood, Keith Hickman, Brian Lott, Mark Silla, and Joseph Vining, In the Court of Appeals for the Third Judicial District of Texas, at Austin, Cause No. 03 -98 -00233 -CV; R -06-o8-10- ioFa, 1 WHEREAS, the Court of Appeals for the Third Judicial District of Texas, in Pearce v. City of Round Rock, 78 S.W.3d 642 (Tex.App.—Austin 2002, pet. denied), ruled that four of the Plaintiffs' signs were entitled to non -conforming use status as billboards; and WHEREAS, the parties are aware of the risks, uncertainties, and costs of continued litigation and now desire to compromise and settle all matters currently in dispute between them. Il. The terms of this Agreement are as follows: 1. Upon final approval of this Agreement by the Round Rock City Council, and subject to complying with all applicable building codes, regulations, and ordinances except as necessary to implement the terms of this Agreement, Plaintiffs shall be entitled to erect one illuminated 14' by 48' double-faced legal Non -Conforming Use Billboard, with a height not to exceed that established by the Texas Department of Transportation in Title 43, Part 1, Chapter 21, Subchapter I, §21.158, Texas Administrative Code, at 2960 Jazz Street, Round Rock, Texas. The faces on the billboard shall be oriented to be viewed from State Highway 45. Conditioned upon and subject to Plaintiffs' complying with the aforesaid ordinances and requirements, Round Rock shall grant the permits or applications necessary to construct and operate this Billboard. 2. Upon final approval of this Agreement by the Round Rock City Council, and subject to complying with all applicable building codes and ordinances except as necessary to implement the terms of this Agreement, Plaintiffs shall be entitled to erect one illuminated 14' by 48' double-faced legal Non -Conforming Use Billboard, with a height not to exceed that established by the Texas Department of Transportation in Title 43, Part 1, Chapter 21, Subchapter I, §21.158, Texas Administrative Code, at 3125 Louis Henna Blvd. (State Highway 2 45), Rock, Texas. Conditioned upon and subject to Plaintiffs' complying with the aforesaid ordinances and requirements, Round Rock shall grant the permits or applications necessary to construct and operate this billboard. 3. Plaintiffs agree that they will not allow the advertisement of any sexually oriented business on either of the Billboards as that term is defined by Round Rock's ordinances. The Parties agree that the actual damages that might be sustained by Round Rock by reason of the breach by Plaintiffs of the aforesaid covenant are uncertain and would be difficult of ascertainment, and that the sum of $500.00 for each day that the breach continues would be reasonable compensation for such breach. Plaintiffs hereby promise to pay and Round Rock hereby agrees to accept, such sum as liquidated damages, and not as a penalty, in the event of such breach. Prior to initiating any legal action to enforce this covenant, Round Rock agrees that it will provide Plaintiffs with written notice of any alleged violations of this covenant, after which Plaintiffs shall have ten days to cure such alleged violation. 4. Plaintiffs agree that they will not be entitled to erect any other non -conforming signs or billboards within Round Rock's jurisdiction. 5. Within five days upon final approval of this Agreement by the parties, in Cause No. 97-414-0277 Plaintiffs agree to file a motion to dismiss with prejudice. III. The parties acknowledge the adequacy of consideration as expressed by the recitations and mutual covenants in this Agreement. 3 IV. In consideration of the mutual promises and covenants contained in this Agreement, the parties hereby fully release, acquit, and discharge one another (including their agents, officials, employees, representatives, attorneys, and insurers) from any and all claims, liabilities, causes of action or damages, whether known or unknown, arising out of or made the basis of the above - referenced disputes and litigation. V. The Plaintiffs hereby each jointly and separately represent and warrant that: 1. They each thoroughly understand the terms of this Agreement and have received the advice from their counsel regarding the terms and consequences of this Agreement; 2. They each enter into this Agreement knowingly, freely and voluntarily; 3. They each understand and agree that this Agreement contains everything they will ever receive from Round Rock pertaining to the aforementioned disputes and litigation between the parties; 4. Except for the promises contained in this Agreement, no representations regarding this Agreement or promises made by Round Rock, or any agent, attorney, or representative of Round Rock regarding this Agreement, has influenced them in entering into this Agreement; 5. They each fully understand and agree that the two legal Non -Conforming Use Billboards allowed to be erected under the terms of this Agreement will be considered as non- conforming uses under Round Rock's ordinances and state law; 4 6. They have not assigned or conveyed any interest in the claims that have or could have been asserted in the above -referenced lawsuits or the claims that are released in this Agreement; and 7. They are the sole owner of any released causes of action and that no third party has any interest in said claims. VI. This Agreement is made in settlement of disputed claims and causes of action, and the provisions in this Agreement are not to be construed as an admission of liability by any party, which liability is hereby denied. Further, the parties agree that nothing in this Agreement shall be construed as a waiver of Round Rock's ordinances, rules, regulations, or other laws except as necessary to implement the terms of this Agreement. VII. Each party shall bear its own attorney's fees and costs of court. VIII. This Agreement shall be binding upon and inure to the benefit of the parties and their respective representatives, officials, agents, employees, successors and assigns. IX. In the event any litigation is initiated after the date of this Agreement to construe and/or enforce this Agreement or any term hereof or in connection with any alleged breach of this Agreement, any prevailing party shall be entitled to recover all costs of litigation, including reasonable attorney's fees, expert fees, court costs, and expenses from and against any non - 5 prevailing party. Further, mandatory venue for such litigation shall be in Williamson County, Texas. X. Unless the basis of the bargain among the Parties hereto is destroyed or rendered ineffective by invalidity or unenforceability of any provision hereof, if any provision of this Agreement should be held to be void or unenforceable in any respect, then the remaining portions of this Agreement shall remain in full force and effect. XI. The Parties and their respective attorneys participated in the drafting and preparation of this Agreement. Therefore, this Agreement will not be construed in favor of or against any party on the basis that such party did or did not author this Agreement. XII. Plaintiffs have represented they have acquired lease options on the billboard sites described in this Agreement and are in the process of seeking the necessary permits from the Texas Department of Transportation. In the event the lease options are terminated by the lessors prior to the date when the billboards are erected or if the Texas Department of Transportation refuses to permit the proposed billboards, the Parties agree to use their good faith best efforts to secure a similar alternate site or sites which are mutually acceptable to the Parties. 6 XIII. This Agreement contains the entire agreement between the Parties and supersedes all prior agreements, understandings, or proposals, whether written or oral, relating to the above - referenced disputes and lawsuit. EXECUTED on this ID day of August, 2006. THE CITY 1 ROU 1 ;W EXAS Bv: ell, Mayor BEFORE ME, a Notary Public, on this day personally appeared Nyle Maxwell, Mayor the City of Round Rock, Texas, known to me to be the person whose name is subscribed to the foregoing instrument and who, being duly sworn, did state and acknowledge to me on his oath that he has read and executed this SETTLEMENT AGREEMENT for the purposes and consideration therein expressed. Given under my hand and seal of office this 15 day of August, 2006. EXECUTED on this 5 day of August, 2006. 7 Public for t e State of Texas MICHAEL MASON WEAVER Notary Public, State of Texas RA, Commission Expires January 31. 2010 RICHARD WALLACE PEARCE BEFORE ME, a Notary Public, on this day personally appeared Richard Wallace Pearce, known to me to be the person whose name is subscribed to the foregoing instrument and who, being duly sworn, did state and acknowledge to me on his oath that he has read and executed this SETTLEMENT AGREEMENT for the purposes and consideration therein expressed. Given under my hand and seal of office this t7 day of July, 2006. BETH A. REYNOLDS Notary Public. State of Texas My Commission Expires July 30, 2007 Notary Public for the State EXECUTED on this7.7 day of July, 2006. Texas RAY BLANN BEFORE ME, a Notary Public, on this day personally appeared Jesse Ray Blann, known to me to be the person whose name is subscribed to the foregoing instrument and who, being duly sworn, did state and acknowledge to me on his oath that he has read and executed this SETTLEMENT AGREEMENT for the purposes and consideration therein expressed. Given under my hand and seal of office this 2.7 day of July, 2006. BETH A. REYNOLDS Notary Public, State of Texas My Commission Expires July 30, 2007 Notary Public for the Sta END OF AGREEMENT 8 f Texas