12-11 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-11
A RESOLUTION OF THE TOWN COUNCIL,OF THE TOWN OF PROSPER, TEXAS,
HEREBY ENTERING INTO A COMPROMISE AND SETTLEMENT AGREEMENT PRE
LITIGATION DISPUTE BETWEEN THE TOWN OF PROSPER, TEXAS, AND
BERKLEY SURETY GROUP AUTHORIZING THE TOWN MANAGER TO EXECUTE
THE SAME.
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 compromise and
settlement agreement pre litigation dispute between the Town of Prosper, Texas and
Berkley Surety Group.
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
compromise and settlement agreement hereto attached.
SECTION 3: This Resolution shall take effect on Febwary 14, 2012
RESOLVED THIS THE 14th day of February, 2012 by vote of 5-0.
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Ray Smith Mayor
ATTEST TO:
Amy Piukana;T- C
Town Secretary
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COMPROMISE AND SETTLEMENT AGREEMENT
Pre litigation dispute between Town of Prosper,Texas and Berkley Surety Group
The Parties to this Agreement are the parties listed after "Attorney for:" The attorneys are
listed for identification and convenience:
Ms. Rebecca H. Brewer
rb rewer @abernathy-1 aw.co m
Abernathy,Roeder, Boyd & Joplin, PC
1700 Redbud Blvd.,Ste.300 Phone: (214)544-4000
McKinney,TX 75069 Fax(214)544-4044
Attorney for Town of Prosper, Texas ("Plaintiff')
Mr. James L. Deem
j ldeem @fordnassen.corn
Ford Nassen & Baldwin PC
8080 N.Central Expressway,Ste. 1600,LB 65 Phone: (214)523-5130
Dallas,TX 75206 Fax: (214)521-4601
Attorney for Berkley Regional Insurance Company (part of Berkley Surety Group)
("Defendant")
(Plaintiff and Defendant are individually and collectively referred to herein as "Party" or
"Parties")
This Compromise and Settlement Agreement ("Agreement") is subject to the approval of the
Town Council of the Town of Prosper, Texas ("Town Council"). The Town Council will be
considering and possibly acting on this Agreement at its Tuesday, February 14, 2012 meeting
("February Meeting"). Should the Town Council approve this Agreement at the February
Meeting, Defendant shall be required to tender the Settlement Funds (hereinafter defined) to
Plaintiff no later than March 15, 2012 ("Payment Date"). Should the Town Council fail to
approve this Agreement at the February Meeting, then this Agreement shall be null and void and
of no force and effect.
1. Subject to the Town Council's approval, this Agreement is intended to bind the Parties
from the date of execution under Rule 11 of the T.R.C.P. and Rule 41(a) of the F.R.C.P.
(as is applicable) and under general contract law. The Parties contemplate the
preparation of further documents in carrying out the performance of this Agreement. The
terms, conditions, and representations herein shall control the terms, conditions, and
representations of further documents. This Agreement shall not be construed as
"unenforceable" because the Parties prepare further documents to memorialize the
matters contained herein. This Agreement is intended to be fully enforceable on its own
terms. If the Parties are not able to agree on the construction, terms, or conditions in
future documents, then this Agreement is the Agreement between the Parties.
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605519.1
2. Defendant shall pay to Plaintiff the sum of $515,000.00 ("Settlement Funds") by or
before the Payment Date to the attention of Rebecca Brewer at 1700 Redbud Blvd., Suite
300, McKinney, Texas 75069.
3. Payment of the Settlement Funds or other consideration given herein is without
admission of liability.
4. Each Party hereby releases the other Party from all claims that could have been asserted
in a lawsuit by either party against the other, including but not limited to, any and all
claims by the Plaintiff against the Performance and Payment Bonds ("Bonds") of
Defendant furnished for the "First Street and Coit Road Improvements" contract
previously awarded to Weir Bros., Inc. by the Plaintiff, whether known or unknown, for
and in consideration of this Agreement, except as provided herein. The release includes,
as is applicable, shareholders, partners, members, subsidiaries, affiliates, Town Council
members, agents, employees, officers, directors, insurers, heirs, assigns, and legal
representatives. The release shall be binding on the successors, heirs, assigns, and
attorneys of the releasing party(ies).
5. Attorney, James Deem, shall prepare the usual forms to memorialize the matters set forth
in this Agreement ("Final Agreement"). The Parties shall promptly agree upon the Final
Agreement, with said form of the Final Agreement being subject to Town Council
approval. The Final Agreement shall be prepared and submitted to the Town Attorney by
or before February 27, 2012 for review and comment. The Final Agreement must be
executed by the Defendant by March 8, 2012 so that the same can be presented to the
Town Council on March 13, 2012 for its consideration and possible execution.
6. Attorney's fees are to be paid by the Party incurring same.
7. Time is of the essence as to all rights and obligations under this Agreement. Should the
Plaintiff execute the Final Agreement at its March 13, 2012 meeting, the same shall be
tendered to the Town Attorney, and provided she receive the Settlement Funds by the
Payment Date, the Final Agreement and original Bonds shall be delivered to James Deem
at 8080 N. Central Expressway, Ste. 1600, LB 65, Dallas, Texas 75206.
8. Each Party should have this Agreement and the Final Agreement independently reviewed
by the respective Party's counsel before executing said agreements.
THIS AGREEMENT IS NOT SUBJECT TO REVOCATION, BUT IS SUBJECT TO THE
TOWN COUNCIL APPROVAL.
The Parties hereby execute this Agreement on February 14, 2012. The signing Parties
represent and warrant that they have the authority to sign this Agreement and that the Parties on
whose behalf they have signed are bound by this Agreement, subject to the Town Council's
approval mentioned above.
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605519.1
Venue for this Agreement and the Final Agreement shall lie exclusively in Collin County,
Texas.
APPROVED: AGREED:
Town of Prosper exas
IA I hi I
'ebecca '. Brewer By:
Mike Land, own Manager
Berkley Regional Insurance Company (part
of Berkley Surety Group)
By: hi/ IIih. 16
James L. Deem A
Its: ti tie, cL
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605519.1