12-15 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-15
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS,
HEREBY AUTHORIZING THE TOWN MANAGER TO ENTER INTO A SETTLEMENT
AND MUTUAL RELEASE AGREEMENT BETWEEN BERKLEY REGIONAL
INSURANCE COMPANY AND THE TOWN OF PROSPER.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: The Town of Prosper, Texas, hereby enters into a settlement and
mutual release agreement with Berkley Regional Insurance Company.
SECTION 2: The Town Manager of the Town of Prosper, Texas, is hereby
authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, a
settlement and mutual release agreement between Berkley Regional Insurance
Company and the Town of Prosper.
SECTION 3: This Resolution shall take effect on March 13, 2012
RESOLVED THIS THE 13th day of March, 2012 by vote of to�.
M-dyor'Wo Tem
ATTEST TO:
Amy Piukand,, TI` MC
Town Secretary
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SETTLEMENT AND MUTUAL RELEASE AGREEMENT,
This Settlement and Mutual Release Agreement ("Settlement Agreement") is entered by
and between the Town of Prosper, Texas, a Texas home-rule municipality, ("Town") and
Berkley Regional Insurance Company (`Berkley"). The Town and Berkley are individually and
collectively referred to herein as "Party" or"Parties".
RECITALS
WHEREAS, on or about November 2, 2010, Weir Bros., Inc. ("Weir") entered into a
written contract ("Contract") with the Town for the construction of certain improvements known
as the "First Street/Coit Road Paving Improvements" (the "Project") following an award of such
Contract by the Town to Weir, and Weir, as Obligor, and Berkley, as Surety, issued a
Performance Bond and a Payment Bond (collectively, "Bonds") in favor of the Town in the
penal sum of$6,844,220.79 and bearing Bond No. 0150761, in accordance with the requirements
of the Texas Government Code, Section 2253.001, et. seq., as amended ("Code") assuring the
faithful performance of the Contract; and
WHEREAS, by letter dated July 15, 2011 ("Town's July letter"), the Town issues a
demand letter to Weir to resume work with ten (10) days and to submit, by July 20, 2011, a
revised schedule for the Project; and
WHEREAS, Weir failed and refused to comply with the Town's July letter; and
WHEREAS, in accordance with the Code and by letter dated September 14, 2011
("Town's September letter"), the Town issued a written declaration that Weir abandoned the
Project, was in default under the Contract, terminated Weir's right to proceed under the Contract,
and made demand upon Berkley to arrange for the completion of the work for the Project in
accordance with the Performance Bond; and
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WHEREAS, by letters dated September 16 and 22, 2011 (`Berklev's September letters"),
Berkley advised that it would not be completing the work on the Project pursuant to the
Performance Bond, offering, among other reasons for its refusal to perform under the
Performance Bond, that the Town had not complied with the Contract regarding utility
relocations; and
WHEREAS, the Town thereafter advertised for bids from contractors for the construction
of the Project, and a contract for such work was awarded to Tiseo Paving on November 8, 2011
("Current Contractor"); and
WHEREAS, the Town and the Current Contractor entered into a construction contract for
the Project, dated December 22, 2011 ("Current Contract"); and
WHEREAS, the Current and contract amount exceed Weir's bid for the Project by the
sum of $705,757.30, said amount being within the approximate range of the second lowest
bidder the first time the Town bid the Project; and
WHEREAS, on February 14, 2012, a mediation session was held between the Town and
Berkley regarding the claims being asserted by: (i) the Town, pursuant to the Government Code,
against the Performance Bond of Berkley, which claims resulted in damages in the approximate
total amount of $789,857.30 and included claims for the various costs that the Town had
incurred or would incur in having to arrange for the construction of the Project by the Current
Contractor, which claims were disputed by Berkley on various grounds; and (ii) Berkley
regarding the alleged breach of the Contract by the Town and Berkley's demand for the return of
the Bonds, which claims were disputed by the Town on various grounds; and
WHEREAS, during the mediation session, a Compromise and Settlement Agreement
("Mediated Settlement") was reached and signed by the Town and Berkley. Pursuant to the
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Mediated Settlement, the Parties agreed, amount other things and subject to the approval of the
Town Council, that: (i) Berkley would pay the sum of$515,000.00 (`Settlement Funds") to the
Town under the Performance Bond in settlement of all claims asserted by the Town against the
Performance Bond arising out of the Contract and default by Weir; (ii) the Town and Berkley
would mutually release each other of and from all claims that had been asserted prior to litigation
or that could have been asserted in a lawsuit by either Party against the other; and (iii) the Town
agreed to return the original Bonds to Berkley's attorney upon the receipt by the Town of the
Settlement Funds; and
WHEREAS, the Mediated Settlement was approved by the Town Council on February
14, 2012, at its duly called regular meeting, as evidenced by the passage of Resolution No. 12-
11; and
WHEREAS, in accordance with the terms of Paragraph 5 of the Mediated Settlement, the
Parties desire to formally document their agreements in this Settlement Agreement to
memorialize the matters set forth in the Mediated Settlement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties, intending to be legally bound, hereby agree as follows:
1. RECITALS INCORPORATED.
The representations, covenants and recitations set forth in the foregoing recitals of this
Agreement are hereby incorporated into the body of this Settlement Agreement.
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2. TERMS OF SETTLEMENT.
Upon execution of two (2) original notarized copies of this Settlement Agreement by the
Parties and delivery of same and/or a copy to counsel and payment pursuant to Section 1(a)
below, this Settlement Agreement will be effective. The Parties agree to the following:
(a) Pavment of Settlement Funds. Upon the Parties' execution of this Settlement
Agreement, Berkley will pay the Town the Settlement Funds no later than March 15, 2012 by
delivery to its attorney, Rebecca Brewer, at 1700 Redbud Blvd., Suite 300, McKinney, Texas
75069.
(b) Delivery of Bonds to Berklev. Upon the Parties' execution of this Agreement
and the Town's receipt of the Settlement Funds, the Town will return the original Bonds to
Berkley by delivery to its attorney, James Deem, 8080 N. Central Expressway, Suite 1600, LB
65, Dallas, Texas 75206, which Bonds shall then be fully released and discharged in their
entirety.
3. THE TOWN'S COVENANT NOT TO SUE,.
Except as to such rights as may be created under this Settlement Agreement, the Town,
and its Town Council members, agents, employees, representatives, insurers, heirs, assigns and
legal representatives, hereby irrevocably and unconditionally RELEASES, ACQUITS, AND
FOREVER DISCHARGES Berkley, its officers, directors, shareholders, partners, members,
subsidiaries, affiliates and legal representatives, from and against any and all past, present, and
future claims, causes of action, cross-claims, counterclaims, actions, rights, demands, costs,
expenses, attorneys' fees, damages, debts, promises, covenants, agreements, contracts,
endorsements, bonds, obligations, liabilities, and losses in law or equity, asserted or unasserted
accrued or unaccrued, express or implied, foreseen or unforeseen, real or imaginary, suspected or
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unsuspected, known or unknown, liquidated or non-liquidated, relating to, in connection with, or
arising from the Contract, Project and Bonds.
The Town acknowledges and understands that hereafter it may discover or appreciate
claims, facts, issues, or concerns in addition to or different from those that it now knows or
believes to exist with respect to the subject matter of this Settlement Agreement that, if known or
suspected at the time of execution of this Settlement Agreement, might have materially affected
the settlement embodied herein. The Town nevertheless agrees that the release and waiver
described above applies to any such additional or different claims, facts, issues, or concerns. The
Town acknowledges that this release is intended to be broad and is a critical element of this
Settlement Agreement.
4. BERKLEY'S RELEASE AND COVENANT NOT TO SUE,.
Except as to such rights as may be created under this Settlement Agreement, Berkley, its
officers, directors, shareholders, partners, members, subsidiaries, affiliates and legal
representatives, hereby irrevocably and unconditionally RELEASES, ACQUITS, AND
FOREVER DISCHARGES, the Town, and its Town Council members, agents, employees,
representatives, insurers, heirs, assigns and legal representatives, from and against any and all
past, present, and future claims, causes of action, cross-claims, counterclaims, actions, rights,
demands, costs, expenses, attorneys' fees, damages, debts, promises, covenants, agreements,
contracts, endorsements, bonds, obligations, liabilities, and losses in law or equity, asserted or
unasserted accrued or unaccrued, express or implied, foreseen or unforeseen, real or imaginary,
suspected or unsuspected, known or unknown, liquidated or non-liquidated, relating to, in
connection with, or arising from the Contract, Project and Bonds.
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Berkley acknowledges and understands that hereafter it may discover or appreciate
claims, facts, issues, or concerns in addition to or different from those that it now knows or
believes to exist with respect to the subject matter of this Settlement Agreement that, if known or
suspected at the time of execution of this Settlement Agreement, might have materially affected
the settlement embodied herein. Berkley nevertheless agrees that the release and waiver
described above applies to any such additional or different claims, facts, issues, or concerns.
Berkley acknowledges that this release is intended to be broad and is a critical element of this
Settlement Agreement.
5. NO ADMISSION OF LIABILITY.
The Parties acknowledge that they expressly understand that this Settlement Agreement
and the settlement it represents (a) are entered into solely for the purpose of avoiding any
possible future expenses, burdens or distractions of litigation and (b) in no way constitutes an
admission by either Party hereto of any liability of any kind to any other party or of any
wrongdoing on the part of either of the Parties. In this connection, except as otherwise agreed to
herein, the Parties specifically deny liability in connection with any claims that have been made
or could have been made, or which are the subject matter of, or arise from, or are connected
directly or indirectly with or related in any way to the allegations raised prior to litigation or
which could have been asserted in a lawsuit, including, but not limited to, any violation of any
federal or state law (whether statutory or common law), rule or regulation, and deny that a
violation of any such law, rule, or regulation has ever occurred.
6. NO OTHER CLAIMS.
The Parties acknowledge, warrant, and represent that: they and their officers, partners,
affiliates, and members are not aware of and know of no other, additional claims that they have
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or may have; and they and their officers, partners, affiliates, and members are not aware of and
know of no other persons or entities that have asserted or may assert claims against each other.
7. BINDING AGREEMENT.
The Parties acknowledge, warrant, and represent that this Settlement Agreement shall
inure to their benefit, and shall be binding upon the Parties, their predecessors in interest (if any),
successors, assigns, representatives and insurers.
8. MISCELLANEOUS PROVISIONS,.
(a) NO RELIANCE. IN SIGNING THIS SETTLEMENT AGREEMENT, THE
PARTIES HAVE NOT RELIED ON OR BEEN INDUCED TO EXECUTE THIS
SETTLEMENT AGREEMENT BY ANY STATEMENTS, REPRESENTATIONS,
AGREEMENTS OR PROMISES, ORAL OR WRITTEN, MADE BY ANY OTHER
PARTY, THEIR AGENTS, EMPLOYEES, SERVANTS OR ATTORNEYS, OR ANYONE
ELSE, OTHER THAN THE STATEMENTS EXPRESSLY WRITTEN IN THIS
SETTLEMENT AGREEMENT.
(b) GOVERNING LAW. The validity, effect, and construction of this Settlement
Agreement and any obligations undertaken pursuant hereto, and any dispute relating to or arising
from the negotiation and execution of this Settlement Agreement, shall be governed by the laws
of the State of Texas, without regard to any conflict of laws provisions. Venue of any action
regarding this Settlement Agreement and the enforcement thereof shall exclusively lie in Collin
County, Texas.
(c) NO TAX OR ACCOUNTING ADVICE PROVIDED,. The Parties
acknowledge, understand, and agree that none of the Parties are providing tax, accounting, or
legal advice and that the Parties make no representations regarding tax obligations or
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consequences related to or arising from this Settlement Agreement. Each of the Parties assumes
sole liability and responsibility for its respective federal, state and/or local tax obligations or
consequences which may arise from or relate to this Settlement Agreement, and will not seek any
indemnification from another Party.
(d) REPRESENTATIONS AND WARRANTIES,. The Parties represent and
warrant that they are the sole owners of all claims, rights, demands, and causes of action that
they are relinquishing by execution this Settlement Agreement and that no other person or entity
has any interest in such claims, rights, demands, and causes of action.
(e) BREACH. The Parties acknowledge and agree that this Settlement Agreement
may be used as evidence in any subsequent action or proceeding in which any party alleges a
breach of this Settlement Agreement or asserts any claims inconsistent with its terms. The
Parties understand and acknowledge that a breach of this Settlement Agreement would cause
irreparable damage and injury for which there is no adequate remedy at law, and that such
provisions provide a material element of consideration for, and inducement to enter into this
Settlement Agreement and the performance of its obligations hereunder.
(f) CONSIDERATION. The Parties acknowledge, warrant, and agree that adequate
consideration was exchanged and supplied by all Parties to the Settlement Agreement.
(g) JOINT EFFORTS. This Settlement Agreement has been prepared by the joint
efforts of the respective attorneys for each of the Parties and each party acknowledges that they
have carefully read the instrument and that the instrument expresses the entire agreement
between the Parties concerning the subjects it purports to cover and that each party has executed
this instrument freely and of their own accord. The Parties agree that the doctrine of contra
proferentum shall not apply to the interpretation and application of the Settlement Agreement.
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(h) STRICT CONSTRUCTION. This Settlement Agreement shall not be strictly
construed against either Party hereto.
(i) ATTORNEYS' FEES, COSTS, AND EXPENSES. The Parties shall each bear
all of their own attorneys' fees, costs, as against each other, including but not limited to
mediation costs, and expenses incurred in connection with the Project, Contract, Bonds and the
negotiation, execution and delivery of this Settlement Agreement, as well as all fees, costs and
expenses, if any, of its advisors, in connection with any claim that has been made or could have
been made in, or which is the subject matter of, or arises from, or is connected indirectly or
directly with, or related in any way to the claims released herein.
0) ADDITONAL DOCUMENTS,. The Parties or their counsel shall execute all
such further and additional documents that shall be reasonable, convenient, and necessary to
carry out the provisions and intent of this Settlement Agreement.
(k) COUNTERPARTS. This Settlement Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
(1) TITLES. The titles of the Sections of this Settlement Agreement are inserted for
convenience only and shall not affect the meaning or construction of any of the terms of this
Settlement Agreement.
(m) SEVERABILITY. In the event that any one or more of the provisions contained
in this Settlement Agreement shall, for any reason, be declared in a legal forum to be invalid,
illegal, ineffective, or unenforceable in any respect, such invalidity, illegality, ineffectiveness or
unenforceability shall not affect any other provisions of this Settlement Agreement, which
Settlement Agreement shall remain in full force and effect, valid and binding upon both of the
Parties, and each of the provisions of this Settlement Agreement shall be enforceable
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independently of any other provision of this Settlement Agreement and independently of any
other claim or cause of action, except that if Sections 2, 3, 4, or 5 are held to be invalid, illegal,
or enforceable, then the entire Settlement Agreement shall be considered null and void ab initio,
unless otherwise agreed to in writing by the Parties.
(n) ENTIRE AGREEMENT, AMENDMENT. This Settlement Agreement
constitutes the full, complete, and entire understanding, agreement, and arrangement of and
between the Parties with respect to the settlement of the Contract, Project, Bonds and release of
the claims set forth in Sections 3, 4, and 5 herein and supersedes any and all prior oral and
written understandings, agreements and arrangements between them, and there are no other
agreements, covenants, promises or arrangements between the Parties other than those set forth
herein concerning the subject matter of this Settlement Agreement. There is no other
consideration for this Settlement Agreement other than the consideration set forth in this
Settlement Agreement. This Settlement Agreement may be amended, altered, modified or
waived, in whole or in part, only in a writing executed by all Parties to this Settlement
Agreement. This Settlement Agreement may not be amended, altered, modified or waived, in
whole or in part, orally.
(o) NO WAIVER. The failure of the Parties to insist upon strict adherence to any
term of this Settlement Agreement on any occasion shall not be considered a waiver thereof or
deprive that party of the right thereafter to insist upon strict adherence to that term or any other
term of this Settlement Agreement.
(p) REPRESENTATION BY AND CONSULTATION WITH COUNSEL,. The
Parties acknowledge that they are executing and delivering this Settlement Agreement with full
knowledge of any and all rights which each may have with respect to the claims and causes of
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action herein settled and released. The Parties acknowledge that they have been represented by
counsel of their own choosing in connection with the Project, Contract, Bonds and the
negotiation and execution of this Settlement Agreement and that they have had a reasonable and
sufficient opportunity to consult with counsel to the extent they desire before executing this
Settlement Agreement, and that they fully understand the meaning and effect of its/their action in
executing the Settlement Agreement.
(q) NO DURESS. The Parties hereto have entered into this Settlement Agreement
voluntarily and with consent of counsel for valuable consideration, and not by reasons of any
fraud, duress, undue influence or mistakes. The Parties each represent and warrant that (a) they
are legally competent to enter into this Settlement Agreement and have complete authority to do
so, (b) they are represented by legal counsel in connection with the execution of this Settlement
Agreement and related documents, (c) they are not in a significantly disparate bargaining
position, and (d) they are knowledgeable and fully able to evaluate the merits and risks of this
transaction.
(r) EFFECTIVE DATE. This Settlement Agreement shall become effective
following execution by the Parties to this Settlement Agreement and payment of the Settlement
Funds by Berkley to the Town as required in Section 2(a).
(s) ACKNOWLEDGMENT,. The Parties acknowledge that they have read this
Settlement Agreement and that they fully know, understand, and appreciate this Settlement
Agreement and execute this Settlement Agreement and make the settlement and release provided
for herein voluntarily and of their own free will and by executing this Settlement Agreement
signify their assent to and willingness to be bound by its terms.
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IN WITNESS WHEREOF, the Parties and undersigned hereto, intending to be legally
bound, have consented to and ecuted this Settlement Agreement on the dates set forth below.
THE TOWN OF PRO/ TEXAS q�`111111oI���
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By 1-17
Mike Land T w 'Manager
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Date: �6p /Y/ /Z--
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BERKL
EY REGIONAL I RANCE COMPANY
By:
Its:
Date:
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STATE OF TEXAS
*
COUNTY OF COLLIN
BEFORE ME, the undersigned authority, on this day personally appeared Mike Land,
known to me to be one of the persons whose names are subscribed to the foregoing instrument;
he acknowledged to me he is the duly authorized representative for the TOWN OF PROSPER,
TEXAS, and he executed said instrument for the purposes and consideration therein expressed.
IVE UNDER MY HAND AND SEAL OF OFFICE this oi- day of
2012.
}Very PubliJ in a for the State of Texas
srgPy: Commin Expires:
�F of
STATE OF NEW JERSY
COUNTY OF MORRIS
�1
BEFORE 1VIE, the un4ersigned authority, on this day personally appeared
of BERKLEY REGIONAL INSURANCE COMPANY,
known to me to be on persons whose names are subscribed to the foregoing instrument,
and who acknowledged to me that she executed the same for the purposes and consideration
therein expressed and in the capacity therein stated on behalf of said company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
//rtt�tf' 12012.
Notary Publi in and for the State of IL-Pi
My Commission Expires:
DEBORAH SCHADE
Notary Public of New Jersey
My Commission Expires June 6, 2012
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Approved as to form and substance;
Rebecca H. Brewer
Abernathy, Roeder, Boyd &Joplin, P.C.
1700 Redbud Boulevard
Suite 300
McKinney, TX 75069
By.
Rebecca H. Brewer
Attorney for The Town of Prosper, Texas
James L. Deem, Esq.
Ford Nassen & Baldwin P.C.
8080 North Central Expressway
Suite 1600, LB 65
Dallas, TX 75206-1819
By:,
James L. Deem
Attorney for Berkley Regional Insurance Company
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