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Home My WebLink AboutResolution No. 07-064 RESOLUTION NO. 07- o~t.f A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE RELEASE AND SETTLEMENT AGREEMENT WITH DENTON COUNTY ELECTRIC COOPERATIVE, INC. D/B/A COSERV ELECTRIC, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A," FOR THE MITIGA TION CLAIM ARISING FROM THE TRIMMING AND/OR REMOVAL OF TREES ON CITY OWNED PROPERTY; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, Denton County Electric Cooperative, Inc. d/b/a CoServ Electric (hereinafter collectively referred to as "CoServ") was granted certain easements on property designated as public parks (hereinafter "Property") owned by the City for the purpose of constructing, installing, maintaining, repairing, replacing or relocating its electric facilities on the Property; and WHEREAS, CoServ trimmed and/or removed trees located on the Property during the construction of its electric facilities; and WHEREAS, the City desired CoServ mItIgate the damages caused by CoServ's trimming and removal of such trees on the Property prior to January 11, 2007 ("Mitigation Claim"); and WHEREAS, the City and CoServ desire to settle all matters between the parties related to the Mitigation Claim; and WHEREAS, the City Council desires to enter into the Release and Settlement Agreement, which is attached hereto and incorporated herein as Attachment "A," and to authorize the City Manger to execute the same. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The City Council hereby approves the terms and conditions of the Release and Settlement Agreement by and between the City of Colony, Texas, and Denton County Electric Cooperative, Inc. d/b/a CoServ Electric for the Mitigation Claim arising from the trimming and/or removal of trees on City owned property prior to January 11, 2007, which is attached hereto and incorporated herein as Attachment "A." Section 2. That the City Manager is hereby authorized to execute all appropriate documents to enter into said Agreement as provided for herein. Section 3. This Resolution shall become effective immediately from and after its passage, as the law and charter in such cases provides. Page 1 TM 17888.76.000 PASSED, APPROVED and EFFECTIVE thi~L of July 2007. ATTEST: E21~~~ City of The Colony, Texas Page 2 J n Dillard, Mayor ity of The Colony, Texas ~-<'>t( OF .,..}< .. r\ \ ...... ". /-:. ,"'.~ v." "." \,\ '~.... ""()~ .{ ,::t:;, S . q ,_. - .\ ,. ';-Y . 0 1 ~ ~A ! : Z ~. \'" olIJ........:."" "... . J'iXAS"'" , TM 17888.76.000 RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement (this "Agreement") is entered into this ~ day of July , 2007, by and between Denton County Electric Cooperative, Inc., d/b/a CoServ Electric ("CoServ") and The City of The Colony, Texas ("City"). RECITALS WHEREAS, the City, as owner, has granted certain easements (collectively, the "Easement") to CoServ covering portions of the real property being generally referred to as the "RB. Owen Park" generally located north of Squires St. and west of Independence Rd., and the "Turner Street Park" generally located north of Turner Rd. and west of Independence Rd. (collectively, the "Property"); and WHEREAS, the Easement provides, among other things, that CoServ has the right to trim and/or remove trees located on the Property in connection with its construction, installation, ownership, maintenance, repair, replacement or relocation of its electric facilities on the Property (the "CoServ Facilities"); and WHEREAS, CoServ did trim and/or remove certain trees on the Property during the construction of the CoServ Facilities; and WHEREAS, the City alleges that CoServ agreed to mitigate the "damages" caused by CoServ's trimming and removal of such trees on the Property prior to January 11, 2007 (the "Mitigation Claim"); and . WHEREAS, CoServ and City desire to settle all matters between them related to the Mitigation Claim. AGREEMENTS NOW, THEREFORE, for and in consideration of the above premises, the promises, releases and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby stipulated, the parties agree as follows: 1. Settlement Consideration. CoServ hereby agrees to pay to City the sum of $80,500.00 (the "Settlement Amount") contemporaneously with the full execution of this Agreement as final settlement of all claims against CoServ now or hereafter made by City and any and all other disputes related to the Mitigation Claim that have arisen or may arise between CoServ and City. City understands and agrees that it will receive no further sums of money from CoServ, and City agrees not to assert or prosecute any further claims or lawsuits against CoServ, with respect to the Mitigation Claim. 2, Release. City hereby RELEASES AND FOREVER DISCHARGES CoServ and all of its members, directors, officers, employees, agents, representatives, affiliates, subsidiaries, 1 successors, assigns, and all other persons or entities in privity with CoServ (collectively, the "CoServ Parties") from any and all claims, demands, liabilities, suits, damages, judgments, costs, loss of services, causes of action, and other liabilities and obligations (collectively, the "Released Claims") of whatsoever nature, kind or character, whether at law or in equity, whether existing or arising under the laws of the United States of America, the State of Texas or any political subdivision, whether now known or unknown, whether now existing or that may exist hereafter, whether matured or unmatured, pertaining to the Mitigation Claim. Furthermore, City acknowledges and agrees that, following the full execution of this Agreement and payment by CoServ of the Settlement Amount, (i) CoServ shall have no obligation for maintenance of any trees on the Property, whether currently existing on the Property or located thereon at any time in the future, and (ii) CoServ shall continue to have the right granted it under the Easement to cut, trim, chemically treat with herbicides, and/or remove trees, shrubs, bushes, brush and vegetation on the Property, as is reasonably necessary to accomplish the exercise of its rights under the Easement, without incurring any further liability to City therefor. 3. Representations and Warranties. City represents and warrants to CoServ that: (a) City has not assigned or otherwise transferred (whether directly or indirectly) any of the Released Claims released pursuant to paragraph 2 above; (b) City has complete and full authority as the sole owner of the Released Claims to enter into this Agreement; (c) City has carefully read this Agreement and knows and understands its contents completely and has had every opportunity to consult its attorney(s) regarding its execution of this Agreement; (d) City is executing this Agreement of its own free will, act and deed and that, in making this Agreement, City has not relied upon any statements or representations pertaining to this matter made by CoServ or any of the CoServ Parties, other than as is expressly stated in this Agreement; and (e) City shall execute any and all documents reasonably required to effectuate the purposes and intent of this Agreement. 3. General Provisions. 3.1 Neither the execution of this Agreement by CoServ nor its payment of the Settlement Amount to City shall be deemed to be an admission of liability by CoServ. 3.2 This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supercedes all prior proposals, negotiations, agreements and understandings relating thereto. 3.3 THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED PURSUANT TO THE LAWS OF THE ST ATE OF TEXAS WITHOUT 2 REGARD TO ITS CONFLICTS OF LAW. EXCLUSIVE VENUE OF ANY ACTION BETWEEN COSERV AND CITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN THE STATE COURTS LOCATED IN DENTON COUNTY, TEXAS, OR THE FEDERAL COURTS LOCATED IN DALLAS COUNTY, TEXAS, AND EACH OF THE PARTIES HEREBY SUBMITS TO THE PERSONAL mRISDICTION OF SUCH COURTS FOR SUCH PURPOSE. 3.4 No cancellation, modification, amendment, deletion, addition or other change in this Agreement or any provision thereof shall be effective for any purpose unless specifically set forth in a writing signed by the parties hereto. 3.5 All covenants and agreements hereunder shall be binding upon and shall inure to the benefit of and shall be enforceable by or against each of the parties hereto and their respective permitted successors and assigns. 3.6 In the event that one or more provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 3.7 This Agreement may be executed in multiple counterparts, each of which shall be considered an original, and facsimile signatures shall be valid and binding as if they were an original signature. {Remainder of page intentionally left blank.} 3 EXECUTED to be effective as of the date first shown above. CITY: THE CITY OF THE COLONY, TEXAS By: Name: Title: c;J~ rl~ Dale Cheatham City Manager COSERV: DENTON COUNTY ELECTRIC COOPERATIVE, INC., d/b/a COSERV ELECTRIC ~~e. ~ GLiY Title: Semor v Ice President Energy Servlce~ 4