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R-04-05-13-13H1 - 5/13/2004 RESOLUTION NO. R-04-05-13-131-11 WHEREAS, on March 10, 2003 , the City of Round Rock ("City") entered into a contract with Fillip Construction Company, Inc . ( "Fillip") for the construction of turn lanes on Gattis School Road from High Country Boulevard to Red Bud Lane ( "Project") , and WHEREAS, Fillip 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 Fillip have expressed a willingness to settle this claim for the amount of $18, 704 . 00, and WHEREAS, the City and Fillip 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 Fillip Construction Company, 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. aPFDesktOp\::ODMA/WORLDOX/O:/WDOXiRESOLUTI/R40513H7..WPD/SC RESOLVED this 13th day of May, 2004 . L, Mayor ity of Round Rock, Texas T ST: ft/Y. LA-))e lttjiv� CHRISTINE R. MARTINEZ, City Secr tart' 2 SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT and RELEASE (the "Settlement Agreement") is entered into this day of April, 2004, by and between City of Round Rock, a home-rule municipal corporation ("CORR"), and Fillip Construction Company, Inc., a Texas corporation ("FILLIP"), hereinafter collectively referred to as ("Parties"). WITNESSETH: WHEREAS, on or about March 10, 2003, the Parties entered an Agreement (the "Agreement") wherein FILLIP agreed to commence and complete the construction of certain improvements described as the construction of turn lanes on Gattis School Road from High Country Boulevard to Red Bud (the "Project"); WHEREAS,the terms of the Invitation for Bid and the responsive Proposal from FILLIP required that the Project be completed within 90 calendar days after the date of the written Notice-to-Proceed (the "Bid Completion Term") at a cost of One Hundred Eighty-Nine Thousand Three Hundred Eighty-Five and 67/100 Dollars ($189,385.67) (the "Agreement Price"); WHEREAS, the terms of the Agreement actually signed by the Parties require that the Project be completed within forty-five (45) calendar days after the date of the written Notice-to- Proceed (the "Agreement Completion Term"); WHEREAS, on or about October 20, 2003, a written Notice-to-Proceed was issued by the CORR; WHEREAS, a final walk-through has been conducted by the Parties; WHEREAS, the Contract Period was exceeded by One Hundred Eighty-Six (186) days through no fault of FILLIP ("Delay Period"); WHEREAS, the Delay Period has increased the cost of the Project to Two Hundred Eight Thousand Eighty-Nine and 67/100 Dollars, a difference of Eighteen Thousand Seven Hundred Four Dollars ($18,704.00) (the "Delay Cost-); WHEREAS, FILLIP has made a claim to CORR for the Delay Cost 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; Page 1 of 7EXHIBIT I "An C 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 Eighteen Thousand Seven Hundred Four and No/100 Dollars ($18,704.00) paid by CORK to FILLIP, the receipt and sufficiency of which is hereby acknowledged by FILLIP, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, FILLIP 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 that the actual term for completion of the Project was ninety (90) days and reform the Agreement to reflect such term for completion. 3. 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. Page 2 of 7 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, FILLIP 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 FILLIP 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. 3. In consideration for the agreements of FILLIP, 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 FILLIP may be acting as trustee, CORR hereby RELEASES, WAIVES, ACQUITS and FOREVER DISCHARGES FILLIP, 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 FILLIP 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 FILLIP 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) That CORR does not owe FILLIP any fiduciary duty and that CORR has not relied upon FILLIP 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 Page 3 of 7 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 FILLIP 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; (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 FILLIP, 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 FILLIP not otherwise reserved under this Settlement Agreement; FILLIP;0) That CORR is not in a significantly disparate bargaining position with (k) That CORR understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That CORR understands and intends that FILLIP rely upon these representations and warranties in entering into this Settlement Agreement. 2. FILLIP hereby stipulates, represents and warrants to CORR as follows: (a) That FILLIP 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 FILLIP; (c) That FILLIP 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 FILLIP is not under any form of legal disability or incapacity at the time that they execute this Settlement Agreement; (e) That FILLIP does not owe CORR any fiduciary duty and that FILLIP has not relied upon CORR in a confidential or trust relationship in entering into this Settlement Agreement. (f) That in executing this Settlement Agreement, FILLIP 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 Page 4 of 7 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 FILLIP to this Settlement Agreement was not procured, obtained or induced by improper conduct, undue influence or duress; (h) That after investigation and consultation with its attorneys, or an opportunity thereto, FILLIP agrees that this Settlement Agreement is fair, reasonable, and supported by good, valid, and adequate consideration; (i) That FILLIP 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 FILLIP's intention, and in exchange for the consideration recited herein, to fully and finally release all Claims that they have against CORR; 0) That FILLIP is not in a significantly disparate bargaining position with CORR; (k) That FILLIP understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That FILLIP 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. Severability. The provisions of this Settlement Agreement are severable, and if any part of it is found to be unenforceable, the other paragraphs shall remain in full force and effect. This Settlement Agreement shall survive the termination of any arrangements contained herein. 4. 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. 5. Further Documents. Each party to this Agreement agrees to execute and to deliver such additional documents and instruments and to perform such additional acts, as may be necessary to effectuate, consummate or perform any of the terms, provisions or conditions of this Agreement. 6. Governmental Immunity. Nothing in this Settlement Agreement shall be deemed Page 5 of 7 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. 7. 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. 8. 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. 9. 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. FILLIP CONRUCTION COMPANY,INC. Title: President CITY OF ROUND ROCK By: Nyle Maxwell Title: Mayor ATTEST: By: Christine R. Martinez Title: City Secretary Page 6 of 7 APPROVED AS TO FORM: By: Stephan L. Sheets Title: City Attorney STATE OF TEXAS § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by , President of FILLIP CONSTRUCTION COMPANY, Inc., on this day of April, 2004. Notary Public, State of Texas My Commission Expires: STATE OF TEXAS § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by Nyle Maxwell, Mayor of the City of Round Rock, on this day of April, 2004. Notary Public, State of Texas My Commission Expires: Page 7 of 7 tit �\S 5&00`RO GP o J CO Cc H Z O U 2 0 2 N Gattis School Rd Turn Lanes WE NtH1Nf)It(Hk IFXAS From High Country Blvd to Red Bud Lane I DATE: May 7, 2004 SUBJECT: City Council Meeting - May 13, 2004 ITEM: 13.H.1. Consider a resolution authorizing the Mayor to execute a Settlement Agreement and Release with Fillip Construction Company, Inc. for the Gattis School Roadway Project from High Country Boulevard to Red Bud Lane. Department: Transportation Services Staff Person: Tom Martin, Director of Transportation Services Justification: This settlement agreement will compensate Fillip Construction Company for delays occurring to the initial start date, for the Gattis School Roadway widening from High Country to Red Bud Lane. Funding: Cost: $18,704.00 Source of funds: Capital Project Funds (2001 GO Bond) Outside Resources: Fillip Construction Company, Inc. Background Information: The Gattis School Roadway Project was delayed due to a waterline tie-in under the pavement on Gattis School Road. To prevent the destruction of newly constructed roadway, the project was delayed until such utility adjustments were completed. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS SETTLEMENT AGREEMENT AND RELEASE mAy CRO, This SETTLEMENT AG ENT and RELEASE (the "Settlement Agreement") is entered into this 13 day of , 2004, by and between City of Round Rock, a home-rule municipal corporation ("CORR"), and Fillip Construction Company, Inc., a Texas corporation ("FILLIP"), hereinafter collectively referred to as ("Parties"). WITNESSETH: WHEREAS, on or about March 10, 2003, the Parties entered an Agreement (the "Agreement") wherein FILLIP agreed to commence and complete the construction of certain improvements described as the construction of turn lanes on Gattis School Road from High Country Boulevard to Red Bud (the "Project"); WHEREAS, the terms of the Invitation for Bid and the responsive Proposal from FILLIP required that the Project be completed within 90 calendar days after the date of the written Notice-to-Proceed (the "Bid Completion Term") at a cost of One Hundred Eighty-Nine Thousand Three Hundred Eighty-Five and 67/100 Dollars ($189,385.67) (the "Agreement Price"); WHEREAS, the terms of the Agreement actually signed by the Parties require that the Project be completed within forty-five (45) calendar days after the date of the written Notice-to- Proceed (the "Agreement Completion Term"); WHEREAS, on or about October 20, 2003, a written Notice-to-Proceed was issued by the CORR; WHEREAS, a final walk-through has been conducted by the Parties; WHEREAS, the Contract Period was exceeded by One Hundred Eighty-Six (186) days through no fault of FILLIP ("Delay Period"); WHEREAS, the Delay Period has increased the cost of the Project to Two Hundred Eight Thousand Eighty-Nine and 67/100 Dollars, a difference of Eighteen Thousand Seven Hundred Four Dollars ($18,704.00) (the "Delay Cost-); WHEREAS, FILLIP has made a claim to CORR for the Delay Cost 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; Page 1 of 7 P-04-05-13-13111 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 Eighteen Thousand Seven Hundred Four and No/100 Dollars ($18,704.00) paid by CORR to FILLIP, the receipt and sufficiency of which is hereby acknowledged by FILLIP, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, FILLIP 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 that the actual term for completion of the Project was ninety (90) days and reform the Agreement to reflect such term for completion. J. 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. Page 2 of 7 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, FILLIP 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 FILLIP 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. 3. In consideration for the agreements of FILLIP, 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 FILLIP may be acting as trustee, CORR hereby RELEASES, WAIVES, ACQUITS and FOREVER DISCHARGES FILLIP, 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 FILLIP 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 FILLIP 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) That CORR does not owe FILLIP any fiduciary duty and that CORR has not relied upon FILLIP 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 Page 3 of 7 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 FILLIP 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; (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 FILLIP, 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 FILLIP not otherwise reserved under this Settlement Agreement; (j) That CORR is not in a significantly disparate bargaining position with FILLIP; (k) That CORR understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That CORR understands and intends that FILLIP rely upon these representations and warranties in entering into this Settlement Agreement. 2. FILLIP hereby stipulates, represents and warrants to CORR as follows: (a) That FILLIP 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 agsinst FILLIP; (c) That FILLIP 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 FILLIP is not under any form of legal disability or incapacity at the time that they execute this Settlement Agreement; (e) That FILLIP does not owe CORR any fiduciary duty and that FILLIP has not relied upon CORR in a confidential or trust relationship in entering into this Settlement Agreement. (f) That in executing this Settlement Agreement, FILLIP 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 Page 4 of 7 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 FILLIP to this Settlement Agreement was not procured, obtained or induced by improper conduct, undue influence or duress; (h) That after investigation and consultation with its attorneys, or an opportunity thereto, FILLIP agrees that this Settlement Agreement is fair, reasonable, and supported by good, valid, and adequate consideration; (i) That FILLIP 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 FILLIP's intention, and in exchange for the consideration recited herein, to fully and finally release all Claims that they have against CORR; 0) That FILLIP is not in a significantly disparate bargaining position with CORR; (k) That FILLIP understands and agrees to the terms and conditions of this Settlement Agreement; and (1) That FILLIP 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. Severability. The provisions of this Settlement Agreement are severable, and if any part of it is found to be unenforceable, the other paragraphs shall remain in full force and effect. This Settlement Agreement shall survive the termination of any arrangements contained herein. 4. 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. 5. Further Documents. Each party to this Agreement agrees to execute and to deliver such additional documents and instruments and to perform such additional acts, as may be necessary to effectuate, consummate or perform any of the terms, provisions or conditions of this Agreement. 6. Governmental Immunity. Nothing in this Settlement Agreement shall be deemed Page 5 of 7 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. 7. 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. 8. 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. 9. 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. FILLIP CONS UCTION COMPANY, INC. By: g Title: President CITY OF ROUND ROC yle axwell Title: Mayor ATTEST: By: ' Christine R. Martinez Title: City Secretary Page 6 of 7 APPROV AS TO FO By: Ste han L. Sheets Title: City Attorney STATE OF TEXAS § § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by r—f /lip President of FILLIP CONSTRUCTION COMPANY, Inc., on this ay of il, 2004. /VX a ���AN�{�tirfry,� � N C.F(p l v • Notary Public, State of Texas =?s •' oFt��;' 'ti •'••.�rrlREs.•• �.� My Commission Expires: STATE OF TEXAS § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by Nyle Maxwell, Mayor of the City of Round Rock, on this 3 day ofd, 2004. rnA y - - - ,W'% CHRISTINE R.MARTINEZ Notary Public, State of Texas MY COMMISSION EXPIRES =',S..... August 28,2005 r My Commission Expires: E-C �-QJ Page 7 of 7