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HomeMy WebLinkAboutResolution No. 2015-052 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2015- Dia A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT AGREEMENT WITH LDM INVESTMENTS, INC. FOR PLANT MATERIAL REPLACEMENT AT KIDS COLONY PLAYGROUND; PROVIDING AN EFFECTIVE DATE NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas, has duly reviewed and considered the Settlement Agreement by and between the City of The Colony and LDM Investments, Inc. for plant material replacement at Kids Colony Playground. Section 2. That this Settlement Agreement, attached hereto as Exhibit "A", is found to be acceptable and in the best interest of the City and its citizens, and the City Manager is hereby authorized to execute the Agreement on behalf of the City of The Colony, Texas, with the terms and conditions as stated therein. Section 3. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 16th day of June, 2015. dee . .r_ — . Jo McCou , Mayor ity of The Colony, Texas AT S : J , .,,.,,,,,,,, C ristie Wilson, TRMC, City Secretary pF • PPROVED AS TO FORM: sss . %-L .�Q su Jeff Moire, Sty Attorney FULL AND FINAL SETTLEMENT AND RELEASE AGREEMENT A. DEFINITIONS 1. The City of The Colony, Texas, is an Obligee (hereinafter, "The City") in Bond Number PB03228300114. 2. LDM Investments, Inc., d/b/a LDM Design and Construction (hereinafter, "LDM" or "Principal") is the Principal in Bond Number PB03228300114 (hereinafter, "the Bond"). 3. The Project is Kid's Colony 2 Playground—Phase II (hereinafter, The Project"). 4. The Surety for Bond Number PB03228300114 is Philadelphia Indemnity Insurance Company (hereinafter, "the Surety"). 5. "The City" as used herein shall mean all parties identified hereinabove as obligees under the Bond and who are parties to this Agreement, and shall include any and all "Derivative Claimants" and "Entities" as defined below. 6. The Principal as used herein shall mean all parties identified hereinabove as principals under the Bond and who are parties to this Agreement, and shall include any and all "Entities" as defined below. 7. "Entities" of a party shall mean those persons and/or entities (whether now in existence or not), and which are or were formerly owned or controlled, in whole or in part, directly or indirectly, by a party to this Agreement, or any Derivative Claimant, and their respective entities, employers, employees, directors, shareholders, officers, assigns,predecessors, successors, attorneys, representatives or agent of such persons and/or entities. 8. "Notice" shall mean the Notice of Claim submitted by the Obligee to the Surety by correspondence, dated October 31, 2014, with the subject matter being "Notice: Default by Settlement Agreement Page 1 Contractor and Claim under Maintenance Bond." 8. "Representatives" of a person or entity shall mean and include all of that person's or entity's past or present principals, agents, servants, employees, attorneys, consultants, experts, • partners (both general and/or limited), equity participants, officers, directors, shareholders, parent companies, subsidiaries, affiliates, predecessors, successors, assigns, estates, beneficiaries, heirs, devisees, legatees, trustees, and personal representatives. 9. "Settlement Agreement" shall mean this Full and Final Settlement and Release Agreement executed by and between the parties hereto. 10. The "Non-Cash Inducement" as contemplated by this Settlement Agreement is described as follows: LDM will no longer be responsible to warrant the landscaping resolved by this Settlement Agreement that is the subject of the City's notice of claim submitted to the Surety. The City will withdraw its notice of claim submitted to Philadelphia Indemnity Insurance Company, the Surety. This Settlement Agreement does not alter or release LDM's warranty on the remaining landscaping and other items constructed by LDM on the Project that are not the subject of the City's notice of claim submitted to the Surety. B. CONTRACTUAL RECITALS AND STATEMENT OF PURPOSE WHEREAS, The City has initiated the Notice of Claim under the Maintenance Bond against the Principal, LDM, alleging a default by the Principal and notice of demand for satisfaction of the Surety's obligations under the Maintenance Bond; and WHEREAS, LDM has denied, and continues to deny, all such allegations by The City of The Colony, Texas; and WHEREAS, this Settlement Agreement, and the execution hereof, does not, and is not Settlement Agreement Page 2 intended to be, construed to be, or is an admission of any fault or wrongdoing by or on behalf of The City or LDM, all such claims having been expressly denied heretofore, and the parties continue to deny the same; and WHEREAS, all provisions of this Settlement Agreement and Mutual Release are contractual in nature, and not mere recitals only; and WHEREAS, the purpose of this Settlement Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. NOW, THEREFORE. in consideration of the mutual covenants and conditions herein contained, and the incorporation of the above Recitals, the parties hereto agree as follows: C. PERSONS AND ENTITIES BOUND BY THIS SETTLEMENT AGREEMENT 1. The Obligee, The City of The Colony, Texas, understands and agrees that by execution hereof, the terms of this Settlement Agreement are binding upon The City and upon all representatives, successors and assigns of The City. 2. LDM Investments, Inc., d/b/a LDM Design and Construction understands and agrees that by execution hereof, the terms of this Settlement Agreement are binding upon LDM and upon all representatives, successors and assigns of LDM. 3. The City of The Colony, Texas, represents and warrants that The City has approved of all of the terms, conditions and covenants of this Settlement Agreement as evidenced by the duly authorized signature to this Settlement Agreement. 4. LDM Investments, Inc., d/b/a LDM Design and Construction, represents and warrants that LDM has approved of all of the terms, conditions and covenants of this Settlement Agreement as evidenced by the duly authorized signature to this Settlement Agreement. Settlement Agreement Page 3 D. NO OUTSTANDING CLAIMS 1. The City of The Colony, Texas, warrants and represents that The City has no awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by The City, which is not subject to and fully released by this Settlement Agreement, except for matters as may be expressly excluded in this Settlement Agreement, that concerns or relates in any way, directly or indirectly, to the Notice of default of the Principal submitted by The City to the Surety on or about October 31, 2014. 2. The City of The Colony, Texas, warrants and represents that The City has not assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any kind or character, which The City had or may have had prior to and including the Effective Date of this Settlement Agreement against LDM Investments, Inc., d/b/a LDM Design and Construction. The City of The Colony, Texas, neither has nor owns any part of any actual or potential claims, demands, suits, causes of action, charges, or grievances of any kind or character against LDM which are not subject to and released by this Settlement Agreement. E. CONSIDERATION 1. In consideration of the total sum of$2,500.00 (Two Thousand Five Hundred and No/100 Dollars) and in further consideration of the "Non-Cash Inducement" described hereinabove from LDM, the receipt and sufficiency of which is hereby acknowledged by The City, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, The City of The Colony, Texas, hereby accepts the above-referenced payment and Non-Cash Inducement in full settlement, Settlement Agreement Page 4 compromise and release of all claims arising out of or in connection with the Notice of default of the Principal submitted by The City to the Surety on or about October 31, 2014, pursuant to this Settlement Agreement, against LDM Investments, Inc., d/b/a LDM Design and Construction. 2. LDM shall tender such sum in the following manner: Thirty (30) days after the signing date of this Agreement by The City, LDM shall deliver a check for the total amount of the settlement sum, payable to The City and delivered to Brown & Hofmeister, LLP, attorneys, as Trustee. 3. In exchange for the settlement amount and as a Non-Cash Inducement, the following will occur: Within Fifteen (15) days after receiving the settlement amount of $2,500.00, The City will withdraw the Notice of default of the Principal submitted by The City to the Surety on or about October 31, 2014, by notifying the Philadelphia Indemnity Insurance Company that the Default Notice has been withdrawn. 4. 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 Notice of default of the Principal submitted by The City to the Surety on or about October 31, 2014, and/or this Settlement Agreement. F. MUTUAL RELEASE The City of The Colony, Texas, and LDM Investments, Inc., d/b/a LDM Design and Construction, hereby covenant, agree and consent to the following: 1. The intent of the parties hereto is that each person or entity executing this Settlement Agreement shall, by reason of such execution, be entirely free of any and all actual or potential claims, suits, demands, causes of action, charges or grievances of any kind or character, regardless of the nature or extent of the same, arising out of the Notice of default of the Principal Settlement Agreement Page 5 submitted by The City to the Surety on or about October 31, 2014. 2. The City of The Colony, Texas, ,hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES LDM Investments, Inc., d/b/a LDM Design and Construction (any of LDM's representatives), and The City further covenants not to assert in any manner against any of such persons or entities released hereby, any and all actual or potential claims held by The City, against LDM, and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, and in any manner (whether directly or indirectly) arising from or related to the Notice of default of the Principal submitted by The City to the Surety on or about October 31, 2014. 3. LDM Investments, Inc., d/b/a LDM Design and Construction, hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES The City of The Colony, Texas (and The City's representatives), and LDM further covenants not to assert in any manner against any of such persons or entities released hereby, any and all actual or potential claims held by LDM against The City and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, and in any manner (whether directly or indirectly) arising from or related to the Notice of default of the Principal submitted by The City to the Surety on or about October 31, 2014. G. INUREMENT It is understood and agreed that this Settlement Agreement shall inure to the benefit of the parties to this Settlement Agreement. No other person or entity is intended to benefit by or Settlement Agreement Page 6 be deemed a third-party beneficiary of this Settlement Agreement. H. EXPRESS DENIAL OF LIABILITIES The City of The Colony, Texas, and LDM Investments, Inc., d/b/a LDM Design and Construction and/or their representatives, understand and agree that no payment made nor released pursuant to the terms of this Settlement Agreement, or other consideration given, shall be intended to be, nor shall be construed to be, an admission of liability, and any and all such liability is expressly denied. I. SEVERABILITY If any one or more of the provisions of this Settlement Agreement, or the application of any such provision to any person, entity, or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent at any time, the remainder of this Settlement Agreement, and the application of such provision to persons, entities, or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be enforceable to the fullest extent permitted by law. Any invalid, unlawful, or unenforceable provision hereof shall be reformed to the extent necessary to render it valid, lawful, and enforceable in a manner consistent with the intentions of the parties hereto regarding such provision. J. ENTIRE AGREEMENT OF THE PARTIES This Settlement Agreement constitutes the entire agreement and understanding of The City of The Colony, Texas, and LDM Investments, Inc., d/b/a LDM Design and Construction and/or the representatives of said parties, with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and understandings related to the subject Settlement Agreement Page 7 I matter hereof, including but not limited to, the Notice of default of the Principal submitted by The City to the Surety on or about October 31, 2014. No representations, warranties, recitals, covenants, or statements of intention have been made by, or on behalf of, any party hereto which is not embodied in this Settlement Agreement or in connection with the transactions contemplated hereby, and no party hereto shall be bound by, or liable for, any alleged representation, warranty, recital, covenant, or statement of intention not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals, and statements of intention in this Settlement Agreement shall be binding upon, inure to the benefit of, and be enforceable by The City of The Colony, Texas, and LDM Investments, Inc., d/b/a LDM Design and Construction, and/or their representatives. K. GOVERNING LAW This Settlement Agreement shall be construed in accordance with the governing laws of the State of Texas. The obligations of the parties are performable, and exclusive venue for any legal action arising out of this Settlement Agreement shall lie, in Denton County, Texas. L. FULL UNDERSTANDING AND AGREEMENT EACH RELEASING PERSON, ENTITY, OR PARTY WARRANTS THAT SUCH PARTY HAS READ THIS FULL AND FINAL SETTLEMENT AND RELESE AGREEMENT AND FULLY UNDERSTANDS IT. EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO EXECUTE THIS SETTLEMENT AGREEMENT, AND THAT SUCH PARTY HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY Settlement Agreement Page 8 REPRESENTATION OF ANY KIND OR CHARACTER NOT EXPRESSLY SET FORTH HEREIN. M. EXECUTION AND EFFECTIVE DATE This Settlement Agreement may be signed in counterparts, and each counterpart shall constitute an original. The parties hereto have executed this Full and Final Settlement and Release Agreement on the dates set forth opposite their names, to be effective as of /L�` , 2015. Troy owell, as City Manager of The City of The Col ny, Texas Date signed: c : .x t \c==t 5 Dorothy Modabberi, as President of LDM Investments, Inc., d/b/a LDM Design and Construction Date signed: `1131 // Settlement Agreement Page 9